Sunday, September 21, 2014
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Canada’s great First Nations experiment

Jeffrey Simpson

The Globe and Mail

Canada, without being sure precisely how to proceed, is trying to do something with aboriginal peoples in its midst that no other country in the world is attempting.

The effort involves taking the principles and statements of the Royal Proclamation of 1763 about fair treatment of natives and respect for their rights and updating and giving practical effect to those ideals for the 21st century.

Necessarily, this is a complex task in today’s world, since aboriginals account for a small fraction of Canada’s population (perhaps 4 per cent), compared with their majority position in the mid-to-late 18th century in the territory we now call Canada.

Almost 60 per cent of First Nations communities have fewer than 1,000 persons, but that description misleads since in many cases members have left their reserves or traditional areas. That these “nations” number in the hundreds and are scattered across most of Canada means, among other practical things, that they have – and historically have had – little in common one with the other. As a result, they are always going to struggle, whatever their “title” to land and other aboriginal rights, to deliver what they demand: self-government.

Canada has only the vaguest idea of how to marry its own sovereignty with the sovereignty demanded by aboriginal “nations,” sovereignty whose ambit has recently been expanded by the Supreme Court of Canada in its Tsilhqot’in decision.

Whether leading or following – a case could be made either way – the court itself has moved. In a previous ruling, written by then-chief justice Antonio Lamer, the court provided a kind of sliding scale of aboriginal title with rights attached depending on how strong the claim. The judge outlined a long list of developments – including hydro, farming, forestry and roads – that the government could pursue, provided it consulted with aboriginal people.

Beverley McLachlin, now Chief Justice, dissented in that decision, arguing (and this sentence obviously does not do justice to her complete reasoning) that only negotiations based on treaties between aboriginal groups and the Crown could authorize an infringement on aboriginal title. That reasoning impregnated itself into the recent ruling, which greatly widened the definition of title and rights that accompany a claim of title. Marrying the rights of the Crown and those of aboriginals so that some developments can proceed – which had previously proven difficult – just got even harder.

Negotiation for treaties with B.C. “nations,” the ideal preferred by the court and by some aboriginal groups, is great on paper, hard in reality. Only a risible number of treaties have been successfully negotiated since the B.C. Treaty Commission was established. Nothing suggests the process will speed up. A large number of B.C. First Nations either gave up on the process, never joined or quite simply do not recognize the sovereignty of Canada.

Without passing judgment on the prospects and perils of the Canadian effort, the parallelism it increasingly entrenches is different from what prevails in the U.S., where existing treaties remain in force but efforts to extend title and rights have been consistently rebuffed. To give just one example, the Abenaki who used to roam in what is now Vermont, brought a case claiming some rights over land they once occupied. They got nowhere in U.S. jurisprudence.

In Australia, although the high court there has been influenced by the Canadian Supreme Court’s aboriginal rulings, title and rights have not been as extensively defined as in Canada.

New Zealand is a special case, with one treaty between the Maoris and the non-aboriginal majority that remains in force today. There, an ongoing dialectic of Maori parallelism and integration plays itself out in many forms of politics, culture and economics. Not forgetting internal divisions, there is a cohesiveness among Maoris that is found nowhere among Canadian aboriginals for obvious historical and geographic reasons, witness to which is the ongoing dysfunction of the Assembly of First Nations.

Parallelism, harking back to a centuries-old model, can be an inspiring idea. Many aboriginals believe deeply in the model, as do their non-aboriginal supporters and increasingly the courts. The model hasn’t been tried, or worked, anywhere else. As such, this is Canada’s greatest social experiment.

Whatever Trevor

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