The National Post today (Wednesday July 2) printed my op ed on the impact of the recent SCC decision on Aboriginal title. They haven’t posted a copy on the website yet and I’m not sure they will (the Canada Day holiday has played some havoc with the publishing schedule!).
So, just in case they don’t publish it online at some point, below is the raw, un-copyedited version of the op ed. I hope my much more legally-informed and inclined colleagues (I’m looking at you guys, Macfarlane and Baker!) will tell me whether I’m right or wrong?
Of all of the dispute resolution mechanisms available to Indigenous peoples and the Crown in Canada, the judicial system is probably the worst of the lot. Rarely do judicial decisions create harmony and compromise between two parties. Instead, they frequently produce winners and losers and all of the negative feelings that come with being labeled as such.
Canadian judges have long been aware of this fact, which partly explains why it took them so long to clarify the exact nature of Aboriginal title in this country. Previous to this decision, Canadian courts had urged Aboriginal and non-Aboriginal leaders to negotiate their disputes rather than litigate them. This recent decision, however, dramatically changes this long-standing message from the bench, with potentially dire and unintended consequences.
One of the key mechanisms for addressing the Aboriginal land question in Canada has been the treaty process. Although far from perfect, Aboriginal groups have been working with the Crown to negotiate comprehensive land claims agreements to facilitate economic development and empower their communities to exercise their autonomy within the broad legal framework of Canada. Remember that the Supreme Court had previously refused to clearly spell out the nature of Aboriginal title, and so it made sense for Aboriginal groups to negotiate with the Crown.
This new decision, however, radically changes the incentives facing Indigenous people. Now, we are likely to see Indigenous groups across Canada abandon negotiations in favour of simply asserting their title and sovereignty to all their lands. Why bother negotiating a modern treaty, which involves giving up Aboriginal title in exchange for a mixed bag of ownership rights to a much smaller portion of Aboriginal lands, when you can exercise something akin to fee simple ownership over all of your traditional lands right away and without the time and expense of negotiating a treaty?
If Aboriginal groups choose this path, then the Crown will have to decide how to react. Will it radically reform the treaty process to bring Aboriginal groups back to the table? Or will it seek confrontation by pushing the “compelling and substantial public purpose” angle to push development forward despite Aboriginal opposition? Given the track record of this federal government, I think the latter strategy is more likely and Canadians should brace themselves for years of protests and confrontations.
A second unintended consequence of this decision, and one that I think is just as important as the others, is that it potentially empowers individual Indigenous citizens to hold not only the government of Canada accountable for its actions, but their Aboriginal leaders as well. Aboriginal title now means something akin to fee simple rights, and which is collectively held by the Aboriginal community. This also means, among other things, that Aboriginal groups may also face potentially powerful restrictions on how they can use their lands now and in the future. According to the Supreme Court, lands held under Aboriginal title cannot be used in such a way as to threaten their future use by future generations.
What this means in practice is that even if an Aboriginal government grants its consent to a major economic development project, an individual band member could successfully sue to prevent that development from occurring on the basis that the project threatened the future use of the community’s lands.
It is also possible that band members might use this new definition of Aboriginal title to thwart other land use projects besides resource extraction, such as building casinos and even housing subdivisions. A band member might successfully argue that building a multimillion dollar casino will prevent future band members from using that particular plot of land for traditional cultural practices, like hunting and fishing.
There’s no question that this decision is a “game changer.” What’s unclear is exactly how the game has been changed and for whom.
Christopher Alcantara is an associate professor of political science at Wilfrid Laurier University. His latest book, Negotiating the Deal: Comprehensive Land Claims Agreements in Canada, was published last year by University of Toronto Press and was a finalist for this year’s Donald Smiley Prize.