Tom Flanagan is professor emeritus of political science at the University of Calgary. Ravina Bains is associate director of the Fraser Institute's Centre for Aboriginal Policy Studies.
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.
Last week's 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, rejecting appellants' contention that only Canada, not Ontario, could grant timber licences on land given to Ontario by Canada in 1912. Provincial control of public lands and natural resources is a cornerstone of the edifice erected at Confederation. It is startling that appellants would have chosen to challenge it. Let's hope that the Supreme Court has batted their argument out of the park for good.
The preceding week's 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 aboriginal title to a specific area.
In one way, this is a welcome development. The original sin of British colonialism in Canada was to ignore the property rights of native people. Indeed, the Judicial Committee of the Privy Council denied that the First Nations ever had any true ownership of the land that is now Canada, referring instead to "personal and usufructuary rights" to hunt, fish, and gather. For the Supreme Court of Canada now to recognize aboriginal title is a legal development comparable in importance to the U.S. Supreme Court's overturning, in Brown v. Board of Education, of the doctrine of "separate but equal" for African-Americans.
But nothing is ever simple in jurisprudence. To paraphrase long-suffering Job, "The Court giveth and the Court taketh away; blessed be the name of the Court." While the Supreme Court recognized aboriginal title in the William case, it imposed three paternalistic conditions that drastically reduce its value.
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 today's First Nations. To confine their right of sale to a single purchaser undermines the value of their lands and 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 must 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 aboriginal title land for a liquid natural gas facility, would that be recognized as 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 aboriginal title land can be used for a variety of purposes as long it can be reconciled with the communal nature of the group's attachment to the land. With the recognition of collective ownership, it is clear that First Nations cannot freely sell aboriginal title lands to whomever they choose – but it remains unclear whether any form of individual property rights can be created.
It is paternalistic for the Court to think that all current First Nations communities, many of which would like to extend full property rights to their 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 other Canadians. Apparently, that's 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. So the real victors of this judgment are the lawyers and consultants who can count on additional billable hours in the years and decades to come. Unfortunately, those who have been fighting to extend full property rights to First Nations members will have to continue their fight in other ways.