A legal study endorsed by the Assembly of First Nations of the federal government’s much-disputed policy requiring that all Indian claims, titles, and rights be extinguished as part of any land claims settlement, establishes an extraordinary existing situation. The study says the federal policy has been outflanked by a series of Supreme Court decisions issues over the last twenty years, and is now inconsistent with the law. But even more remarkably, many of the parameters of the government’s Comprehensive Land Claims Policy (CCP) are hidden away in federal policy statements that are still classified, and are not even available to the public.

This is a classic example of one of the central federal tactics in its dealings with Aboriginal people, namely, to obfuscate and conceal simple facts under a blizzard of bureaucratic paper. Aboriginal people have become used to dealing with that: but until now it is unlikely that most of them have realized that even they are not allowed to know the full details of the government’s policy for stripping Aboriginal rights from Aboriginal people.

The study was prepared for the AFN’s Delgaamukw Implementation Strategic Committee (DISC) by Mark L. Stevenson and Albert Peeling. It was released on Friday, and has been sent by the DISC committee’s co-chair, Chief Arthur Manuel of B.C. to Stephen Owen, the new junior minister in the Indian Affairs Department.

In his letter Chief Manuel says the reason there has been so little progress towards settling claims is that the federal CCP fails to address issues of extinguishment, the recognition of Aboriginal title in the land, and compensation. “That’s why you cannot reach agreements,” Chief Manuel writes. “You might get some First Nations into the process, because they need the money, but you’re only fooling yourself if you think you can get them to sign a final agreement.” Manuel’s letter does not recall — but might well have done —that when David Crombie was minister of Indian Affairs, he commissioned a study that told him extinguishment was not necessary even from the federal government’s point of view. But soon after he received that advice,

Crombie was dismissed from office, it is believed mainly on the impetus of his infuriated senior civil servants.

The study forwarded by Manuel to Owen acknowledges that the federal government changed its 1981 Comprehensive Claims policy in 1987, and that the new policy attempted to search for different language for extinguishment, agreed to include self- government (political rights) as a part of negotiations, broadened the scope of negotiations, and made a greater effort to protect the interests of third parties.

But in essence, he wrote, the policy continues to require that First Nations surrender their rights and title in return for negotiated rights provided through treaties. The only wavering on this issue is in relation to settlement lands and existing reserves, which may remain as Aboriginal title lands, except in British Columbia.

The study runs through the most important cases that have put flesh on to the concept of Aboriginal rights since they were constitutionally endorsed in 1982: R vs Guerin in 1984, (which found that a fiduciary duty lies with the Crown, which has the general obligation to act in the best interests of Aboriginal peoples); .R vs Sparrow in 1990 (which held that a constitutionally protected Aboriginal right exists (the right to fish for food) and that the right has been infringed by federal fishery regulations, and also clarified that the extinguishment of section 35 rights requires clear and plain language); and various other cases, culminating in the Delgamuukw decision in 1997, which held that “Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s Aboriginal Title. This inherent limit flows from the definition of Aboriginal Title as a sui generis interest in land, and is one way in which Aboriginal Title is distinct from a fee simple.”) These clarifications by the Supreme Court have put the Comprehensive Claims Policy in violation of the law, says the study forwarded by Manuel to Owen. The study admits that the 1987 changed policy admitted self-government as an acceptable part of negotiations, but states that it did not allow for its constitutional protection. In other words, under the CCP self-government remains “essentially a delegated form of community-based self-government.” But on this subject the study reveals one of those classic government obfuscations: self-government is allowed to receive constitutional protection as part of Canada’s Inherent Right Policy, announced in a document with the mouth-watering title Aboriginal Self-government: The Government of Canada’s Approach to Implementation of the Inherent right and the Negotiation of Aboriginal Self-government.

Manuel’s letter to Owen states that many similar policy statements have been issued containing changes in the CCP policy. These include documents with the jaw-breaking titles of: A Statement of Aboriginal and Crown Title (April 29, 1998), A Statement on Interim Measures for Treaty Negotiations in British Columbia (April 28, 2000), A Statement on Certainty Principles For Treaty Negotiations in British Columbia (April 28,2000), British Columbia Capacity Initiative to enhance British Columbia First Nations’ abilities to prepare for comprehensive land claims negotiations (January 27 1999), a framework policy and funding for Treaty Related Measures in British Columbia, and a revised Province-Wide Fisheries Strategy for Treaty Negotiations in British Columbia. As well, says Manuel, there have also been structural changes to the process of negotiating modern treaties that are specific to British Columbia. In addition to these, there are policy changes from time to time that result from different Final Agreements or from the evolution of politics.

“Extraordinary in its silence” “Canada’s Comprehensive Land Claims Policy (CCP) announced in December of 1986 cries out for revision,” says the DISC study. “The policy was outdated at its inception because it continued the ‘cede release and surrender’ policy of the historic treaties and placed that policy in a 20th century context. The legal landscape has shifted and the claims policy has not kept abreast. It is now the 21st century and the need for change is self-evident. The federal response to the need for changes is extraordinary in jts silence.

“Apart from not keeping pace with the law,” says the study’s analysis, “the current policy is disjointed and applied inconsistently. Some of these (policy statements) are available to the public, and some are not. Some of these public pronouncements are merely self-serving political statements, others amount to changes in the policy, and it is sometimes difficult to distinguish between the two. Other changes are clearly an attempt to pander to the provinces and third parties and are not in the best interests of Indians.

“There is no single place to locate the policy, and in fact much of the policy remains classified and as such, is unavailable to the public. To make matters worse, critical elements of what is available to the public and purported to be the policy are not being followed.”