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A statutory remedy

The treaty-making process in BC is not working. No one knows what its objectives or its parameters are. Government negotiators seem to be prepared to pay any price to get an agreement. No one represents the average citizen. The ministers are in a trust relationship with the native people. How then, can they represent the public interest? They are in a conflict of interest situation.

Who represents the public interest in this land claim process? There are a few outspoken individuals and one or two organizations, such as The Citizens’ Voice on Native Claims and the Fisheries Survival Coalition, along with one or two others. These organizations need your moral and financial support. For those of you who are lawyers, the very sovereignty and future of British Columbia is in jeopardy, and you should be up on your feet saying and doing something about it. Alas, too many of you are mute because the firms you represent either act for a native band or for the federal or provincial departments of aboriginal affairs.

First, the treaty-making process in BC, as it is presently constituted should be suspended, and replaced with a legislative solution, which is the course of action being followed in Australia.

The native leadership here is adamant that it will not agree to an iron-clad extinguishment of aboriginal land interests outside areas covered by a negotiated treaty—a clause that exists in virtually all the other treaties in Canada. Without this, there will be no finality, and therefore no incentive for governments to enter into treaties in the first place. Moreover, the strident demands set out in the five-page document to which I have already referred make it abundantly clear that a resolution of conflicting views is impossible. Thus, the call for legislative action.

The situation in Australia is strikingly parallel to that in British Columbia. Australia has never signed treaties with its aboriginals. In 1992, the High Court ruled that native title existed in Australia. It soon became apparent that the application of that ruling was not compatible with workable and certain land management, which is just what we will find here, if it is not already the case. After one-and-a-half years of deliberation, the comprehensive Native Title Act was introduced by Prime Minister Keating and subsequently passed. It endeavours to strike a balance between the rights of the aboriginal people as found in the Mabo decision on the one hand, and workable and certain land management on the other.

In the Canadian context, I propose a federal statute that would do four things:

1. Declare that the granting of any land tenure by the provincial government—whether past, present, or future—shall have the effect of lawfully infringing upon any aboriginal title over the land area covered by the tenure. This would have the effect of negating aboriginal title in those circumstances. By "any tenure," I mean Crown grants, timber licenses, mineral leases, agricultural leases, grazing permits, rights of way, and so on.
2. Aboriginal title, if it could be proved in specific cases, would continue to exist over untenured Crown land, but only so long as the land remains untenured.
3. Establish a statutory regime to provide fair compensation to any aboriginal group that can establish the loss of aboriginal title over any land included in any land tenure, based on a graduating scale of compensation governed by the nature and extent of the aboriginal interest infringed upon.
4. The statute would establish a duly qualified special tribunal composed of judges, former judges, or people having special knowledge in relation to land management and land assessment, to settle the measure of compensation after a full hearing based on the statutory criteria.

The Supreme Court of Canada in the Van der Peet case made it clear that the federal government has the right to regulate aboriginal title. What I am proposing in points 1 to 4 above is a regulatory scheme that does just that.

This compensation would be primarily monetary compensation awarded on the basis of strict criteria, and would not be, as at the present time in land claim negotiations, whatever the traffic will bear, and go to whoever is the best negotiator, speaks the loudest, and makes the best case.

We in Canada should embark upon this more rational approach to dealing with this difficult problem. The native leadership will resist the process because they are not used to having their views overridden. But they must be reminded that public support for the land claims process is very much on the wane. We must deal fairly, but it must be done in a balanced way, and this is a matter for governments to decide.

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Last Modified: August 23, 2000.