Until recently, like, I suppose, most Canadians, I was not aware of the difference between the concepts of Aboriginal Title, and Aboriginal Rights. I have always been aware that our legal system has made what seemed like an unfair distinction between an Aboriginal right to the land, and the right that any other person might enjoy, namely, that the Aboriginal right did not carry with it ownership of what lies under the ground. This limitation was usually spelled out in treaties, or in any agreements signed between the Crown and an Aboriginal group.

For example, the James Bay and Northern Quebec Agreement, signed in 1975, provides that Quebec retains ownership even of the Category I lands (roughly equivalent to reserves) on and around which the Cree villages are built, including “ownership of the mineral and subsurface rights over such lands.” This, presumably, constituted a recognition of the Crees’ Aboriginal right, but it couldn’t be said to provide them with Aboriginal Title to the land, since this Title was hedged in by so many restrictions as to be virtually meaningless.

The Supreme Court, however, since the era of Chief Justice Dickson, has moved slowly to putting flesh on the concept of Aboriginal rights (which are guaranteed in Section 35 of the Canadian Constitution), and the 1997 judgment in the Delgamuukw case, overturning the decision of the British Columbia Supreme Court, has considerably clarified the matter.

Chief Arthur Manuel, of the B.C. Interior Alliance has been a persistent advocate of this Aboriginal Title, and in his submission to the U.S. Department of Commerce last week he gave a

clear explanation of what it means to him and his people. He said the Supreme Court had used the term Aboriginal Title to refer to “the collective proprietary interest of indigenous peoples in their traditional territories.” But, Manuel added, the Court did not create the concept, it recognized the concept but did not define it. “Rather,” said the Interior Alliance brief in Washington, “it is defined by the highly complex and diversified indigenous laws and belief systems that are perfectly adapted to their local environments,” and ensure their sustainable use. Paragraph 111 of the Delgamuukw judgment said: “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.” (Sui generis means that it cannot be subsumed into any of the other categories of property known in Canada).

“The Indigenous Peoples of the Interior have held their inherent land rights connected to their indigenous laws and land use since time immemorial and have always maintained their validity,” writes Manuel in his brief. He uses the term “inherent rights” to refer to Aboriginal Title and rights, due to the fact that they flow from indigenous laws and form the basis of indigenous identity and nationhood. “Inherent rights” have to be distinguished from “treaty rights” that are enshrined in and flow from treaties signed between indigenous nations and the Canadian Crown. Both are protected under Section 35 of the Canadian constitution. The Interior Alliance Nations have never signed treaties ceding their inherent land rights. Aboriginal Title is held collectively by Aboriginal Nations, based upon the fact that they occupied those lands prior to contact.

Another unique factor is that Aboriginal Title is inalienable and cannot be sold or transferred to any third parties. Indigenous peoples can only transfer it to the federal Crown. “This unique entitlement of the Crown also gives rise to a fiduciary obligation to protect the interests of indigenous peoples. Al though the courts have repeatedly held that Aboriginal Title and rights give rise to this fiduciary obligation, the federal government has so far refused to take positive action to protect Aboriginal Title interests.”

The reason Manuel gives for this federal government refusal to protect Aboriginal Title is that the government sees Aboriginal Title as a competing claim against its own Crown title to the land. This is why the Comprehensive Claims Policy, established in 1973, set as an objective the blanket extinguishment of Aboriginal Title. Since that time — already a quarter of a century — Aboriginal people have been trying to persuade the government to abandon its policy of extinguishment, but without success. The government has remained stubbornly attached to this policy, so much so that when, as Indian Affairs Minister David Crombie had a task force study the issue and recommend to him that the policy was not needed by the government, he was quickly removed from office, it is believed because of the opposition of his senior officials.

The policy of extinguishment was not acceptable to most Aboriginal peoples in British Columbia,” writes Manuel in his brief, “so the government repeatedly changed the terminology while in essence still aiming at the extinguishment of Aboriginal Title.” The Claims Policy states: The purpose of settlement agreements is to provide certainty and clarity of rights to ownership and use of lands and resources in those areas of Canada where Aboriginal Title has not been dealt with. When the agreement comes into effect, certainty will be established as to ownership rights and the application of laws.

What the government aims at, comments Manuel, is the perfection of their own Crown Title and the extinguishment of Aboriginal Title in order to achieve “certainty,” a claim long made by companies who grew worried about the recognition of Aboriginal Title and rights by the different courts and did not want to lose their economic advantage by having to recognize and account for the proprietary interest of indigenous peoples.

Since Aboriginal rights were protected under the 1982 Constitution, the Comprehensive Claims Policy has come under increased scrutiny. The fiduciary obligation of the federal government to protect indigenous interests has also been raised to a constitutional obligation. But still, the federal government has doggedly insisted that all claims negotiations must lead to the extinguishment of Aboriginal Title.

However, it has also become clear that the government cannot unilaterally extinguish Aboriginal Title without the consent of Aboriginal peoples. To deal with this, the federal government set up what they called “voluntary negotiation processes,” aiming at final settlements that would extinguish Aboriginal Title. This is still the only way the federal government will negotiate indigenous access to lands and resources, otherwise, the nations are denied access to their traditional territories and their inherent rights are not recognized. Chief Manuel says that because of their poverty, and the economic incentives offered to their communites, many indigenous groups felt that they were forced to enter into the federal negotiation processes even though they aimed at extinguishment of an Aboriginal Title that had not yet been defined by the courts.

The 1997 Delgamuukw Decision changed all this. Aboriginal Title was unanimously recognized by the Supreme Court of Canada who made clear that it is protected under Section 35 of the Canadian Constitution. Even after this Supreme Court decision, however, the federal government still has refused to change its policy and negotiate with the Interior Alliance nations who continue to press — as they have since at least 1910, in a letter to Prime Minister Wilfred Laurier — for recognition of their Aboriginal Title.

The Supreme Court mandated a different approach reminding the federal government that, “Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. Let us face it, we are all here to stay.” To be in good faith, comments Chief Manuel, negotiations have to be on the basis of the recognition of Aboriginal Title, and have to develop schemes for the co-management of Aboriginal Title lands. Canada’s present land rights policy violates those principles. “The Interior Alliance Nations have never entered negotiations under the Comprehensive Claims Policy, because they refuse to extinguish their Aboriginal Title,” the Alliance said in their Washington brief. “It is (our) submission that the federal policy is not only unconstitutional, it also violates international commercial law. Instead of recognizing Aboriginal Title and accounting for it in the market prices of resources, the federal government actively chose to violate its fiduciary obligation to protect Aboriginal Title interests and thereby confers an illegal benefit on forestry companies in British Columbia who do not have to pay the full price for the resources they harvest and therefore can sell them under market value internationally. “Indigenous peoples have become involved in the ongoing Softwood Lumber dispute because they have long suffered the large scale exploitation of timber resources from their lands, which results in a depletion of their traditional use areas and thereby the loss of their livelihoods. They are not compensated for their loss and their collective proprietary interest in the very forests that are exploited.

“In British Columbia, no treaties were signed with indigenous peoples, who therefore retain their inherent rights over their traditional territories. The Canadian Supreme Court recognized these inherent land rights as Aboriginal Title.

“The Canadian federal government has jurisdiction over lands reserved for Indians and by extension Aboriginal Title lands, and is under a fiduciary obligation to protect the interests of indigenous peoples. They (are) therefore responsible to redistribute part of the revenue collected for resource exploitation to indigenous peoples and secure adequate remuneration for them.”