http://www.ubcic.bc.ca/Resources/certainty.htm
Certainty
Canada's Struggle to Extinguish Aboriginal Title
Our connection to the Land is Sacred, it defines
who we are as Peoples, it is our Aboriginal
Title. Our laws and teachings bid us to honour
and protect our connection to the Land. In the
roots which bind our Peoples to the Land there is
a life and a future for our Peoples.
Canada cannot understand our Sacred connection to
the Land, our Aboriginal Title. It is
"uncertain," because it prevents Indigenous
Peoples from viewing the Land as a commodity to
be bought, sold or traded. From Canada's
perspective, our Aboriginal Title has to be
changed, altered, and defined in a treaty so that
it fits with Canadian laws and ideas about Land.
Canada's strive for certainty reflects a desire
that Indigenous Peoples assimilate into Canada,
that we sever our connection to the Land. Canada
asks that we dig up the roots connecting us to
the Land and replant them through treaties. This
lack of understanding and fear about our
connection to the Land is what Canada strives to address through certainty.
For Indigenous Peoples, our Aboriginal Title and
connection to the Land is certain, it is in the
bones of our grandmothers buried in the earth,
and in the blood which beats in our hearts:
Our Sacred connection to the Land is certain.
Our relationship with the Land, our Title, rests
over every square inch of our traditional
territories: Every rock, mountain top, stream,
valley and tidal swell. This is certain.
Indigenous Peoples have the jurisdiction and
responsibility to protect, access and use the
Land and resources upon the Land for the benefit
of our Peoples. This is certain.
Our own traditional laws and teachings grant us
this certainty: As long as we maintain our Sacred
connection to the Land we will continue to exist as Peoples.
Canada and B.C. have said that the purpose of
treaties or modern land claims agreements is to
achieve "certainty". This booklet discusses the
certainty provisions that have been suggested. In
particular, a confidential document, "Certainty
Summary", which was drafted by the province.
The Certainty Summary gives a fairly clear
indication of the certainty language Canada and
the province will insist upon having in any
treaties or land claims agreements they negotiate.
The purpose of "certainty" on the part of the
federal and provincial governments is to
"exhaustively and completely set forth" all
aboriginal and treaty rights. Rather than simply
accepting the existence of Aboriginal Title as
ownership and jurisdiction over Land and
resources, certainty limits and defines Aboriginal Title and Rights.
Aboriginal Title to lands and resources existed
at the time that the Crown asserted sovereignty.
This Title was never extinguished. This is why
Crown title is uncertain and remains subject to Aboriginal Title.
There is an air of illegality about any
transactions which the Crown makes or authorizes
with respect to Lands and Resources. These
transactions do not acknowledge that Indigenous
Peoples own the Lands, and therefore violate the
legal principle that "You cannot give that which you do not own."
The Crown's willingness to negotiate land claims
requires a promise on the part of Indigenous
Peoples that they will not fully practice their
rights. Canada's negotiating stance is: "We will
recognize your rights, but only if you first tell
us how you will exercise them, and only if you
promise that your rights will not interfere with
our interests." This is certainty.
Canada's sovereignty or ownership of Land and
resources is not challenged, Canada does not have
to "prove" its title. Indigenous Peoples do not
get an equal promise that Canada will tell us how
they will practice their rights, or that their
rights will not interfere with our interests. Quite the opposite.
A modern land claim agreement is a contract
between Indigenous People, Canada and the
Province. Each party gives something in exchange
for something. In order to gain "certainty"
Canada and the Province are willing to grant a
limited recognition of aboriginal title to a
reduced portion of an Indigenous group's
traditional territory, in exchange for the
release of all aboriginal title and rights not
specifically set out in the Agreement.
Convert, Modify and Transform
The intent of the parties in achieving certainty
is evident in the language proposed. Instead of
the traditional "extinguishment" language (which
used such phrases as "cede, release and
surrender") the language of treaties will be
finessed so that it is not so blunt. Aboriginal
title and rights will not be extinguished
outright; Instead, they will be defined and
limited out of existence. Achieving certainty
will require that Aboriginal Title and Rights be
"converted/modified/transformed/etc." into treaty
rights set forth in the Agreement.
Compare these definitions of the words used, all from Websters dictionary:
Extinguish, definitions include
1. "to bring to an end: to make an end of";
2. "to reduce to silence or ineffectiveness";
3. "to cause to be void: NULLIFY"; and
4. "to get rid of usually by payment"
Convert, definitions include
1. "to bring over from one belief, view, or party to another";
2. "to change from one form or function to another";
3. "to alter for more effective utilization"; and
4. "to appropriate without right"
Modify, definitions include
1. "to make less extreme: MODERATE";
2. "to limit or restrict the meaning of...and";
3. "to make basic or fundamental changes in often
to give new orientation to or to serve a new end"
Transform, definitions include
1. "to change in composition and structure"; and
2. "to change in character or condition: CONVERT"
Certainty provisions will change all rights which
aboriginal peoples have into contractual rights
which have been reduced to writing, limited and
defined. The impact of the proposed certainty
provisions is to capture and tame aboriginal
title and rights, and then place them in a cage
constructed of words and legal provisions.
Certainty involves the re-definition and
re-creation of aboriginal rights. This is done through clauses which
Ø convert and reduce all existing aboriginal or
title rights of Indigenous Peoples' into those contained within the
Agreement;
Ø ensure that the Agreement will be the "full and
final settlement" of all aboriginal title or rights;
Ø release all rights not listed in the Agreement to Canada; and
Ø exhaustively set forth all the Section 35
rights of the Indigenous group, including the
manner of their exercise, and all the limitations
to those rights on which the Parties have agreed.
There will be no aboriginal title or rights which
survive their exclusion from the written
Agreement. All aboriginal rights and title will
be transformed to those of contractual or
treaty-rights. Any stray rights which are not
listed (for example, because of oversight, or
because they were not thought of at the time of
the Treaty) will not survive their exclusion from
the Agreement. This means that if Canadian courts
recognize new rights in the future (for example,
a right to water or a commercial interest in
wildlife) Indigenous groups who treaty will not
be able to benefit from these rights.
Land claims agreements will be the Noah's Arc of
Aboriginal Rights: Any title or rights not on the
arc and nailed down with words in the Agreement,
at the time of the treaty will not survive.
Aboriginal title and rights flow from the land
and the historic relationship that Indigenous
Peoples have had with our Lands. The legal
language proposed for certainty will flood the
land with Crown title and forever dam the flow of
rights from the Land to the people. Crown title
will replace aboriginal title. No title or rights
will ever flow from the Land again. Instead, all
rights will flow from the written Agreement.
Modern land claims agreements will create a
double standard in which the interests of the
federal and provincial Crowns and third parties
are recognized. These rights will simply continue
to exist, they will change and adapt over time,
they will continue to live. There is no provision
which releases all undefined rights or interests
of Canada, B.C. or third parties to the
Indigenous group. The rights of the Indigenous
Peoples', on the other hand, will be frozen and
will not grow and adapt. If these rights are not
written into the Agreement, they will no longer exist, they will be dead.
This is an example of how double standards will
be cemented in modern land claims agreements.
Crown title is perfected and recognized over all
Lands, while Indigenous Title is extinguished
from all areas not in the agreement.
These agreements are not fair or equal: there is
no sharing. The Crown gets complete recognition
of its sovereignty, its underlying title to our
lands and the supremacy of its laws over our
governments and People. Indigenous groups get
limited recognition of title to reduced pieces of
land, the right to co-manage resources (along
with government and third parties interests) and
self-government which is subject to Canadian and provincial laws.
Land claims agreements will explicitly contain
recognition of all "third party" interests and
that these are not impacted by aboriginal rights.
Interpretation: A different species of Section 35 rights
Although modern land claims will be acknowledged
as treaty rights under Section 35 of the
Constitution Act, 1982 which "recognizes and
affirms" existing aboriginal and treaty rights,
they will be a different species of Section 35
right. The benefit of having rights recognized
under Section 35 is that Canadian Courts have
read Section 35 to protect Aboriginal peoples and their rights.
At present, under Section 35, courts interpret treaties so that
Ø ambiguous expressions in treaties are resolved in favour of the Indians;
Ø treaty provisions are given a fair, liberal and large interpretation;
Ø the honour of the Crown is assumed when
interpreting treaties (Courts assume that the
Crown intended to act honourably toward
aboriginal peoples and with the best interests of
the aboriginal peoples in mind, while entering treaties); and
Ø any suggestion of "sharp dealing" (unfair bargaining) is not sanctioned.
These principles of interpretation will be
removed from modern treaties and therefore the
protective features of Section 35 will not
operate. Any common law rules with respect to
aboriginal or treaty rights will be replaced by
the provisions of the Agreement and it is
anticipated that the federal government will need
to pass legislation in order to override the common law rules.
Provisions in the new treaties which will remove
common law protection may include:
Ø There will be no presumption that doubtful or
ambiguous expressions or terms are to be
interpreted in favour of any particular Party or Parties.
Ø The Indigenous group will agree that the Crown
has no consultation obligations respecting the
Section 35 rights of the Indigenous group other
than those obligations set out in the Treaty.
Ø The Section 35 rights set out in the Treaty
will be interpreted solely on the basis of the
rights set out in the treaty, without any
distinction based on whether the right is a
[converted/modified/transformed/etc.] aboriginal right or a new treaty
right.
Any common law rules which arise from aboriginal
rights cases which impose a duty on the Crown to
treat aboriginal rights in a certain way, will
not apply if they are not set out in the
Agreement. In Delgamuukw the Supreme Court
suggested that the consent of the aboriginal
peoples with title would be required before
certain actions or measures could be taken if
these actions would have the impact of
interfering with aboriginal title and the
traditional uses to which the Indigenous Peoples have put their lands.
The consent of an aboriginal group to actions
regarding lands over which they have aboriginal
title will not apply to the new treaties unless
this is specifically set out in the agreement.
And, in any case, the consent, or even
involvement, of the aboriginal group will only
apply to those specific tracts of lands
identified in the Agreement. Under Delgamuukw,
consultation, compensation and, possibly consent,
are required for all lands which comprise the
traditional territory and title lands of the Indigenous Peoples.
Although the rights recognized under the
Agreement will be called Section 35 treaty
rights, they will not be afforded the same
protection as Section 35 rights held by other
Indigenous Peoples. These are all eliminated
through the wording of the Agreement and instead
the legal rules surrounding contract interpretation will apply.
Reliance
The Agreements will set forth a broad number of
"reliance" provisions in which the Indigenous
group will agree to "indemnify" Canada and the
province should any damage come to Canada or the
province as a result of stray rights having
survived the Agreement. This means that the
Indigenous group agree to cover the financial
costs to government in the event that they are
sued as a result of the Agreement.
Federal and provincial legislation will be passed
in order to pass this guarantee along to third
parties. Federal legislation may also indemnify the province.
Who can treaty away aboriginal title?
Aboriginal title is a collective interest, which
is held in trust by all members of an Indigenous
Nation. As a collective interest held by each and
every member of an Indigenous Nation, aboriginal
title cannot be bargained or treatied away by
anything less than the full consent of all the
Indigenous Peoples who collectively hold this
title. A majority vote (no matter how high the
percentage) cannot give one group the ability to
extinguish the title and rights of all of the
Indigenous Peoples who hold title.
Canada and the province recognize the illegality
of negotiating an agreement which purports to
extinguish aboriginal title without the full
consent of all of the Indigenous Peoples'
concerned. The collective nature of aboriginal
title means that no Band or group of
Bands/communities can treaty for Lands which
belong to an entire Nation, or that no group of
people within one Nation or Band/community has
the right to treaty for the extinguishment of the
aboriginal title and rights of those members of
their Nation/community who do not give their full consent.
The legal uncertainty of the current process is
heightened by the fact that Indigenous citizens
are not fully or meaningfully involved or
informed in the negotiations of modern land
claims agreements. The collective nature of
aboriginal title (which means that title is
shared by all members of a Nation) creates an
area of uncertainty about all treaties entered
into without the full consent, knowledge and
participation of each and every citizen of the
Indigenous Nation. The same legal principle
applies: "You cannot give that which you do not
own." No vote or ratification process is valid to
authorize any group to enter into a treaty
without the full consent of their people.
The province has proposed to deal with this area
of uncertainty by exacting a legal promise from
the Indigenous group that they have the right to
enter into the Agreement on behalf of all of their people.
If individual Indigenous people do not agree with
the terms of the Agreement and bring law suits in
the future (claiming, for example, that parts of
their traditional territories were not included
in the settlement land, or that the Indigenous
government had no right to extinguish their title
over their traditional territory) the Indigenous
group will agree that they will cover any costs
to Canada and B.C. The result of this clause is
that Indigenous peoples will be suing other
Indigenous peoples and any dollar settlement will
come from the Indigenous peoples themselves,not the government.
Compensation for Past Wrongs
Modern land claims agreements will represent the
"full and final settlement" between the parties,
including of past wrongs. The Indigenous group
will agree not to pursue any legal claims against
Canada or B.C. with respect to any past wrongs. The proposed wording is that
The Indigenous group will release Canada and
British Columbia from any claims that it may have
had prior to the Treaty regarding any
interference or infringement of the Indigenous
group's Section 35 rights, and any claims under
Canada's "specific claims" policy.
The Supreme Court of Canada, in Delgamuukw,
stated that aboriginal title has an economic
component and that government will be liable to
provide compensation in the event of an
abrogation or breach of aboriginal title. This
clause would preclude the Indigenous group from
bringing any legal actions relating to
compensation for the value of the lands and
resources taken from their territories. Canada
and the province will not have to pay
compensation for their past extraction of
resources (which is in the billions of dollars
for most areas), or the spoilage of habitat,
lands and resources which they have been
responsible for. All past claims for
compensation, and any future claims for
compensation, are all reduced into the terms of the Agreement.
Breach
Modern land claims agreements will contain
language in which all parties agree not to
challenge the "validity or enforceability" of the
Agreement. This means that if the Indigenous
group in the future do not think that the
Agreement was a fair deal, they have agreed not to go to Court to challenge
it.
Certainty language will also require that the
parties agree that if one or more parties
breaches the agreement and do not keep the
promises they made under the Agreement, the other
Parties must keep their promises.
A breach of the Treaty by any Party will not
relieve any other Party from its obligations under the Treaty.
Indigenous Peoples who have entered into treaties
with Canada share the common complaint that
Canada has steadfastly refused to honour the
terms of the treaty or the promises it has made.
Canada maintains that Indigenous Peoples have
ceded their aboriginal title through treaties
(and therefore that Crown title is absolute over
those lands) while not honouring the promises
which it made. This clause suggests that the
Indigenous group may be forced to honour their
agreements (ceding aboriginal title and rights to
all areas not included under the Agreement) if
Canada and B.C. do not honour the obligations
they made. For example, if B.C. decides that it
cannot afford to make the payments required under
the treaty, or if it minimizes the co-management
agreement provisions of the agreement, the
Indigenous group will not get their lands and rights back.
Summary
The net impact of the "certainty" provisions
sought by Canada and B.C. will be to create a
double standard with regard to title and
interests in the land. Canada, the province, and
third parties have their rights and interests
recognized and protected. These rights are not
defined or in any way limited by the Agreement.
The Indigenous group, on the other hand, have all
of their rights reduced to the written word of the Agreement.
These certainty provisions are far more
restrictive than any of the "extinguishment
language" which has been used in other modern land claims agreements to
date.
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