The Government of Canada is changing its policy around First Nation treaties in B.C. in the hope that it can calm concerns around aboriginal rights and title.
A policy document released by Indian and Northern Affairs Canada on March 2 indicates that the federal ministry that oversees First Nations is looking to allow negotiation of language in treaties that recognizes aboriginal rights and title.
The document, titled "Canada takes action to support progress in the B.C. Treaty Process," proposes that treaties use "more respectful language related to recognition of Aboriginal rights as well as language that acknowledges the realities of the past, or reconciliation language."
The new approach, the document reads, will provide a more respectful basis for negotiations and allow reconciliation language to be undertaken at the Agreement-in-Principle and Final Agreement stages of negotiations.
For Arthur Manuel, a former Chief of the Neskonlith First Nation and spokesperson for the Indigenous Network on Economies and Trade, the new policy doesn't bring any change to federal policy on aboriginal title. He worries that treaties could lead to the extinguishment of aboriginal rights and title.
"The real problem with aboriginal title is indigenous people do not have any decision-making power with regard to access to the land," he said. "All decisions are controlled by the federal and provincial governments."
Language has been a big sticking point in B.C.'s Treaty Process, which aims to cede major portions of Crown and reserve land to First Nations for the purpose of making their own laws and developing their own economies. Treaty First Nations thereafter maintain a government-to-government relationship with the federal and provincial government.
Criticisms of the Treaty Process revolve around the issue of aboriginal rights and title, which is guaranteed to First Nations, Inuit and Métis people under Section 35 of Canada's Constitution Act. Though undefined in the legislation, the section recognizes and affirms the "existing aboriginal and treaty rights" of Canada's aboriginal peoples.
The Act clarifies that "treaty rights" includes rights existing by way of land claims agreements and that the rights are extended to both sexes but it doesn't go beyond that. INAC defines aboriginal rights and title as "rights held as a result of longstanding use and occupancy of the land." Those rights include the ability of certain peoples to hunt, trap and fish on traditional lands.
"It's an underlying title that is collectively owned by indigenous people that have lived here since, to use a legal term, time immemorial," Manuel said. "If you have a sheet of paper, it's the base sheet of paper and on top of that would be an extra sheet of paper which would be Crown title."
Aboriginal rights and title have been a sticking point for critics of the In-SHUCK-ch Nation, which has been in the treaty process since 1993. The First Nations involved in that process are the Samahquam and Skatin First Nations. The Douglas First Nation renounced its participation in the treaty after a Jan. 30 referendum.
Some following that process worry that ratifying a treaty could lead to the extinguishment of aboriginal rights and title but Chief Negotiator Gerard Peters challenges that assertion.
"It's a holdover from a number of treaties that began in the east and moved westward," he said. "Language that relates to release and surrender, it's much softer in modern day treaties."
As for the new approach, Peters said it's likely to give confidence to First Nations that are beginning the process of treaty negotiations but that it wouldn't change his own negotiations very much.
"There's a lot of concern on what's perceived as extinguishing aboriginal title, that the language is going to soften up a whole lot," he said. "It's never been an issue for me because in the first place, it's never been perceived by me as extinguishment."
