Aboriginal Title and Legislation
I’ve already written a bit about a rumored proposal to institute a ‘fee simple’ property ownership. But given that the Canadian Property Rights Conference is going on this week, I figured it might be appropriate to revisit the issue with a quick post on an under-discussed aspect of this proposal.
Apparently, there is something to this rumor because there is now a website professing support for a First Nations Property Ownership Act (FNPOA) (http://www.fnpo.ca/). And it is further rumored that several provisions of the Act have already been drafted, as supporters of the Act are already making fairly specific claims about the Act’s safeguards for First Nations governance and land tenures.
I’ll write more on the specifics of these claims at a later point. This post more or less picks up on a theme I was discussing one of my earlier posts on Aboriginal Title and terra nullius (http://wp.me/p1AYud-1m). Or my very early reaction to the idea of an FNPOA, here (https://reconciliationproject.wordpress.com/2011/12/16/property-reform-on-reserve) and here (https://reconciliationproject.wordpress.com/2011/12/22/property-reform-part-ii)
While I’m more or less undecided on the FNPOA (I want to see the Act), I’m more than a bit shocked that one particular aspect of the FNPOA hasn’t been raised by opponents-in-principle to the initiative (again, I’m still waiting to see what the legislation actually says) because I think this is possible one of the two greatest problems with the FNPOA proposal (the other is more of a policy problem related to unintended consequences).
The basic problem is the way that the Supreme Court has articulated the nature of Aboriginal Title in the past suggests that the mere existence of the FNPOA could fundamentally change the nature of a declaration of aboriginal title.
This is a major problem for proponents of the Act because they really have very little control over how the Courts interpret the Constitution. As a result, they can offer no guarantees or assurances that this problem can be managed. It’s just out of their control!
Nature of Aboriginal Title is not determined by laws of indigenous nations, but by reference to Canadian law — for no apparent reason
I’ve written a series of posts about what I assert is a less-than-principled approach to the articulation of a test for aboriginal title, as well as the ‘content’ or ‘nature’ of aboriginal title. I suggest much of the legal reasoning in this area of law rests on naked assertions or unsupported assumptions.
One may agree or disagree with that analysis but one cannot deny that the existence and nature of Aboriginal Title is not determined by the customary laws of indigenous nations. I would suggest that the “practices” of claimants are relevant to a determination of title. In fact, in the Marshall and Bernard case, the Court states, “It is established by aboriginal practices that indicate possession similar to that associated with title at common law.” Statements like this are the reason why I assert that the ‘reconciliation’ which occurs in Canada is a reconciliation of claimant’s practices with Anglo-Canadian law. It shouldn’t be, but it is.
Nature of reserve lands and nature of Aboriginal Title are the same
The problem starts with Guerin (http://canlii.ca/t/1lpfn). At page 379, the Court stated, “It does not matter, in my opinion, that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized Aboriginal Title in traditional tribal lands. The Indian interest in the land is the same in both cases”.
In my estimation, the Court was compelled to deal the issue of Aboriginal Title because (I’m guessing) the claimants had pleaded it, along with several other arguments. Guerin was decided in 1984, only two years after the Constitution Act, 1982, and likely while Constitutional Conferences were ongoing (my political history, and knowledge, are quite limited).
But the Court drew an inexorable linkage between the qualities of reserve lands and the qualities of aboriginal title. For no legal reason, I might add. No legal support, not even comparative law or an academic paper. This statement was just an assertion of the Court. This, incidentally, is a linkage I think needs to be broken; however, I cannot deny that the current law states that reserve lands have the same proprietary qualities as aboriginal title.
So, I understand why many First Nations would be very hesitant about entertaining a proposal which would allow individual land holding (by non-natives) within reserves, in fee simple. It could have dramatic impacts on First Nations seeking to assert aboriginal title.
One might argue Guerin isn’t really an aboriginal title case at all, its more about fiduciary duty. If you are inclined to think that this point in Guerin is not really that important, then consider how this reasoning was applied in Delgamuukw.
Supreme Court uses statutes related to on-reserve land tenure to define Aboriginal Title
In Delgamuukw, the Court relied on Guerin to equate the nature of reserve landholdings to Aboriginal Title lands (at paras. 120-121). This is yet another example of how a naked assertion can somehow become an important rule of law in a later case. Again, rather than using an argument based on clear legal principles, precedent (like Calder or British Colonial law) or even international or comparative law, the Court simply used the Indian Act as a basis for understanding the nature of aboriginal title.
Of course, the Court wasn’t limited to the Indian Act. It also considered the Indian Oil and Gas Act(at para 122). While the Indian Oil and Gas Act isn’t exactly opting legislation (as, say, the First Nation Lands Management Act), it also clearly applies only to those First Nations with Oil or Gas resources on reserve.
I find the idea of relying on statute to define constitutional rights quite confusing, but that’s another issue for another day. As critical as I am of this reasoning, it pales in comparison to the almost blind application of the Guerin rule – at least in applying statutes in Delgamuukw, the Court tried to cite something to support its reasoning.
I should point out that the Court was relying on the Indian Act and the Indian and Oil and Gas Act to support a finding which was very favourable to aboriginal claimants – namely that uses of Aboriginal Title lands should not be restricted only to customary practices, but can be used for any number of other purposes – so long as not incompatible with the culture of the claimant.
But this is troubling. The Court has demonstrated a propensity for applying an Act which applies to a limited number of First Nations (hey, like the FNPOA!) in order to derive a general point which applies to the nature of Aboriginal Title itself. It troubles me mainly because I find this kind of reasoning a very poor substitute for a principled approach to the law, which can be interpreted independent of Parliament’s actions.
It is ridiculous to suggest that statutory formulations do not impact on Aboriginal Title because Aboriginal Title law is already influenced by statute and regulation
For proponents of legislative reform of First Nations property to suggest that statutory formulations do not have any effect on Aboriginal Title is either naïve, disingenuous or ill-informed. The rule offered in Guerin is very sound law – reserve lands have the same properties as Aboriginal Title lands. If one can be held in fee-simple individualized lots, so should the other. One may not like that (I don’t), but it is the law.
The reasoning offered by the Court in Delgamuukw, relying on statue to define aboriginal title, also remains good law today. It has not been overturned in subsequent decisions, nor have subsequent courts disavowed the reasoning.
Proponents of the FNPOA cannot assuage concerns that the FNPOA itself may alter or influence judicial interpretation of the nature of aboriginal title
If past experience is any indication, First Nations will be offered fairly generous resources (that is to say, cash for implementation) to sign on to the FNPOA. A range of valid concerns which have already been raised could, in theory, be dealt with either in the legislative development of the Act or in its implementation.
There is absolutely nothing that proponents or the government can offer in terms of assurances about the potential impact of the Act on the continued elaboration of Aboriginal Title law. As noted above, the Court’s reasoning in Delgamuukw remains valid, meaning there is no reason to suspect that a legislative enactment supporting individual land rights (versus collective land rights) for First Nations would not have a serious and profound influence over the articulation of Aboriginal Title rights in Canada.
Such fears are only magnified by the very real fact that there has yet to be a declaration of Aboriginal Title in this country. Depending on how one views current cases under appeal (such as the William case), there may not be such a declaration for many years. Meaning that if such an Act were brought into force, it could dramatically influence the Court’s reasoning and the development of the law of aboriginal title.
Such fears may be overblown because, as I have pointed out previously, there already exist a range of individual property rights on reserve (from CPs to leasehold interests). On the other hand, none of these other property rights is so brazenly and prominently featured in a major piece of legislation, as would be the case with the FNPOA. Moreover, the problem for proponents of the FNPOA using this argument is that the very reason they assert the Act is needed is that these (already existing) property rights are not sufficient or genuine “fee simple” rights.
After all, legislating Aboriginal Title is precisely the approach taken by one of Canada’s sister countries, Australia. Legislating title is not expressly on the table with the FNPOA, but given the Guerin and Delgamuukw decisions, its far from clear the FNPOA wouldn’t have a similar impact in future court cases.
This is where unprincipled development of common law gets us
Going back to Guerin, I must reiterate that the Court simply elected to state that reserve lands have the same quality as Aboriginal Title lands. With no real basis for doing so. Canada has hummed along with this unprincipled assumption as a foundation of aboriginal title law, for quite some time. Until discussions about reforming reserve land tenures become an issue, at least. All of a sudden, this particular conclusion from Guerin may prove to be a remarkable hinderance to the FNPOA.
Principles matter. Equating reserve land with Aboriginal Title and then applying statute as one means of supporting, again, a favourable conclusion for aboriginal claimants, creates more problems than criticism from random bloggers (like me). The weirdest thing is that language in Delgamuukw was almost gratuitous – there were other ways to support the Court’s conclusion. Indeed, this entire concern could be ameliorated quite easily – it would take only a statement from the SCC, disclaiming the importance of statute in an Aboriginal Title case.
The decisions of the Court in Guerin, and later Delgamuukw, may serve to dramatically undermine First Nations support for an FNPOA.
For my part, I’m very surprised this issue (reserve lands are similar to aboriginal title) hasn’t come up yet in the debate. If it does, I think it will be hard for proponents of the FNPOA to dodge. It’s a sufficiently grave issue that I would need to be seriously sold on the potential policy benefits of the FNPOA in order to offset the considerable risk the legislation poses to the future articulation of aboriginal title.