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The Top Ten Uncertainties of Aboriginal Title after Tsilhqot’in

In 2014, the Supreme Court of Canada rendered a historic decision on Aboriginal title in the Tsilhqot’in Nation case. For the first time, a Canadian court made a declaration that an Indigenous community owned specifically defined lands in Aboriginal title. Amid all the commentary about the case, there has not been enough attention to date, though, to the legal uncertainties that remain after the decision—and that have even been perpetuated and expanded by the Court’s decision.

Legal uncertainties are often most harmful to the most vulnerable and marginalized within society. The legal uncertainties after the Tsilhqot’in Nation decision include uncertainties for Indigenous communities themselves on how they are permitted to use their own land. By not reaching more certainty, the decision may well have caused harm to fledgling Indigenous economies.

Legal uncertainty is of course also highly damaging to investment that would build economic prosperity for all, Indigenous and non-Indigenous British Columbians alike. The present paper tries to assess some of the key legal uncertainties left after the Tsilhqot’in Nation decision. Using a risk analysis, it considers the degree of uncertainty left on a number of points in the law and the impact of uncertainty on that point for investment in British Columbia. The key uncertainties are these:

  • restraints imposed on Indigenous communities’ use of their own lands through cultural assumptions by the courts;
  • the potential effects of the United Nations Declaration on the Rights of Indigenous Peoples on Canada’s approach to Aboriginal title;
  • remedies applying if a project is commenced on land later subject to Aboriginal title;
  • ownership of subsurface rights on Aboriginal title lands;
  • requirements of the Aboriginal title test;
  • land claims to land previously occupied;
  • scope of justified limits on Aboriginal title;
  • restrictions of Indigenous communities’ use of their own lands through court-imposed rules about future generations’ potential use of the land;
  • impact of Aboriginal title on fee simple (privately owned) land;
  • impact on sovereignty.

By using a risk-analysis approach to these uncertainties, the paper is able to rank them so as to highlight those that have the most significance and thus to establish a top ten list of uncertainties on Aboriginal title. Many of these uncertainties have very significant implications for British Columbia. Many have major implications for Indigenous communities themselves. Yet, the Tsilhqot’in Nation decision has left many issues unresolved. In some ways, it illustrates the limitations on any hopes of having the courts settle these matters and demonstrates once again the need for political leadership.

The concluding part of the paper highlights several options for policy steps that would be legally permissible if political leaders were ready to use them to resolve these uncertainties. There are advantages and disadvantages of simply continuing to press ahead on the treaty negotiation process, of referring some questions back to the courts, or of using an often under-discussed part of the constitutional amending formulae to legislate on some of the issues in ways that would work for governments and Indigenous communities.

There are many reasons people do not talk about these issues. Some wish to offer reassuring words to the business community. Some want to assess each step as either a progressive step forward or further colonialism. This is an area of policy beset by ideologies to a greater degree than any other. What is needed is sophisticated discussion of tough issues. This paper tries to contribute to the conversation by highlighting a number of ways in which legal uncertainties after the Tsilhqot’in Nation decision imply ongoing problems, imply ongoing threats to fledgling Indigenous economies, and imply challenges with which all British Columbians and Canadians should be concerned.

Métis self-government in Canada is a non-starter

There is no principled constitutional basis for Métis land claims.

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The Debate about Métis Aboriginal Rights—Demography, Geography, and History

In the 2015 federal election campaign, the Liberal Party promised to engage in “nation to nation” negotiations with the “Métis Nation” to establish Métis self-government and to settle unresolved land claims. Discussions are now under way with the provincial affiliates of the Métis National Council in Alberta, Manitoba, and Ontario. Success, however, will be difficult to attain for reasons of demography, geography, and history.

According to the census, the Métis population has grown explosively, from 178,000 in 1991 to 418,000 in 2011. Most of this growth is not from natural increase but from “ethnic mobility,” that is, people adopting new labels for themselves when they answer census questions. As a result of this particular form of population growth, social and economic indicators for the self-identified Métis population are now converging with Canadian averages. At the same time, the category of non-status Indians, which overlaps with the Métis, has grown even faster, from 87,000 in 1991 to 214,000 in 2011.

The Métis National Council claims to represent the historic Métis, whose roots go back to the fur trade in Rupert’s Land and the Canadian North-West. But these people today are only a minority of those who designate themselves as Métis or non-status Indians. If the government of Canada signs an agreement conferring substantial benefits on the historic Métis, it will be hard to exclude other groups with some degree of Indigenous ancestry. This particularly true now that the Supreme Court of Canada in the Daniels decision has held that Métis are Indians under section 91(24) of the Constitution Act, 1867. To determine who will be eligible for benefits, Canada may have to set up a Métis Registry similar in principle to the Indian Registry. That would be an unfortunate further step toward officially classifying Canadians by race.

Geography also poses barriers to Métis self-government. Indigenous self-government in Canada has always had a territorial basis—Indian reserves for the First Nations and the province of Nunavut for the Inuit. But the Métis, no matter how they are defined, are not concentrated in any one city, province, or region. Theoretically, a land base could be set up on unoccupied Crown land, but Métis who have chosen to live in Winnipeg or Edmonton are unlikely to move to a remote rural location for a life of farming, trapping, and lumbering. It may be desirable for provincial or regional Métis organizations to administer some educational, housing, or welfare programs, but that is far removed from genuine self-government and certainly not a basis for “nation to nation” negotiations.

History as well presents serious problems for these negotiations. Métis organizations claim that the distribution of land and scrip in the nineteenth century did not extinguish Métis Aboriginal rights, even though the enabling legislation for these programs justified them in terms of extinguishment. The Supreme Court of Canada has held that in one case, the distribution of land and scrip in Manitoba, administration was so slow and so many mistakes were made as to violate the “Honour of the Crown.” The Court, however, did not prescribe a remedy, nor did it find that Canada had a fiduciary duty to the Métis. Most importantly, the Court has never declared a Métis Aboriginal title to land in the sense of full ownership. The most that the Court has affirmed is harvesting rights in certain situations, which might be useful for a few Métis communities but are largely irrelevant to the hundreds of thousands of Métis and non-status Indians living in the towns and cities of modern Canada.

Governments like to say they have fulfilled their campaign promises but fulfillment in this case may do more harm than good. Implementing this promise threatens to further divide Canada by race, set up new forms of administration falsely labelled as governments, and recognize land claims that go beyond any existing judicial authority.

Indigenous peoples should embrace Canada 150

Over the next decade, more than 650 projects worth $650 billion will benefit First Nation communities.

Assigning benefits on the basis of heredity is not compatible with liberal democracy

The largest First Nation in Canada is the recently recognized Qalipu Mi’kmaq of Newfoundland.

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Incentives, Identity, and the Growth of Canada's Indigenous Population

Statistics Canada has reported unprecedented growth in Canada’s Indigenous population (Indian, Métis, and Inuit). Over the 25 years from 1986 to 2011, it grew from 373,265 to 1,400,685, an increase of 275%, while the population of Canada increased by only 32% in the same period of time. Although Canada’s Indigenous peoples have higher birth rates than other Canadian groups, most of this increase resulted from “ethnic mobility”—individuals changing the identity labels they apply to themselves.

By far the greatest growth occurred in the categories of Métis and non-status Indian, which is purely a function of how respondents describe themselves in the census. But the numbers of Registered Indians (a distinct legal status) have also grown much faster than can be accounted for by natural increase. This paper deals with identity issues surrounding Registered Indian status and First Nations membership; a subsequent paper will deal with the Métis.

Ethnic mobility resulting in the growth in the numbers of Registered Indians has been fostered by adoption of equality rights in the Canadian Charter of Rights and Freedoms (1982); court decisions such as Lovelace (1981), McIvor (2009), and Gehl (2017); statutes such as Bill C-31 (1985) and Bill C-3 (2011); and the recognition by order-in-council of landless bands such as the Qalipu Mi’kmak First Nation (2011). The Registered Indian population is now at least 40% larger because of these legal changes than it otherwise would have been.

An important factor in the growth of the status Indian population is the set of positive economic incentives conferred by Registration, including free supplementary health insurance for all Registered Indians and Inuit, and in some circumstances financial assistance for higher education, exemption from taxation on reserve, and special wildlife harvesting rights. Such benefits can be substantial and are particularly attractive now that the former legal disabilities connected to Indian status, such as not being able to vote, have been repealed. The medical insurance plan alone is worth about $1,200 per person per year. Though social disadvantages of Indian status may still exist, the legal and economic benefits are now substantial enough to create incentives to seek Registered status.

First Nations were established as distinct political communities; but political, judicial, and administrative trends are combining to confer Registered status upon many people who have some degree of Indian ancestry but are not really part of First Nation communities. Ethnic mobility resulting in growth of the Registered Indian population means upward pressure on federal and provincial budgets, because population counts affect Indigenous programming. But expense is not the only concern; these changes also raise a fundamental question: is it justifiable to offer special government benefits solely on the basis of ancestry?

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