Petition: Land Rights, Right Relations

Righting Relationships with Aboriginal Peoples

Land Rights, Right Relations

Petition and Background Information

In keeping with the Jubilee theme of Renewal of the Earth, we the undersigned call for a renewed relationship between Aboriginal and non-Aboriginal peoples based on mutual respect, responsibility, and sharing.

As part of this ongoing process towards a new relationship, we are seeking justice for Aboriginal peoples.

We join the Royal Commission on Aboriginal Peoples and the United Nations Human Rights Committee in calling on the federal government to act immediately to establish a truly independent commission with the mandate to implement Aboriginal land, treaty and inherent rights.

What do Aboriginal land rights have to do with the Renewal of the Earth Jubilee theme?

Jubilee is a time to renew relations between peoples and between peoples and the Earth. This is linked to a call to redistribute wealth. In the Jubilee promise, all land was to be returned to the original owners, reflecting a belief that the land belonged to the Creator. No one was allowed to control vast tracks of land that prevented others from a livelihood.

For Aboriginal peoples, land is a gift from the Creator that belongs to everyone and to future generations. When Aboriginal peoples speak of land rights, they are not talking about a legal concept, but rather a world view and a way of life that reflects their relationship with each other, the land, creation, and other peoples. Land rights are part of the inherent rights of Aboriginal peoples to maintain and develop their long-standing relationship to the land and its resources.

When Aboriginal peoples speak of their inherent rights, they are talking of the collective rights which flow from the fact that Aboriginal peoples occupied their lands prior to the arrival of settlers. Aboriginal inherent rights are not created by governments, but arise out of historical factors which predate any Crown authority over lands and resources. As an example, the inherent Aboriginal right to self-government flows from Aboriginal peoples being self-determining prior to contact.

All over the world and throughout history, collective control of lands and resources has been the key to prosperity and identity. When Europeans arrived in what became Canada the land was inhabited by many Aboriginal nations, each with its own traditional land base, language, economy, system of laws and governments, and spiritual tradition. Because of this historical process, Aboriginal peoples' rights to land and self-determination, as well as the right to access resources on their traditional territories, are recognized within Canadian and international law.

The implementation of Aboriginal land, treaty and inherent rights will allow Aboriginal peoples to continue to assert their distinct identity and to take control over their own lives. It will provide them with the means to survive as healthy, vibrant peoples.

Most Aboriginal peoples retain a spiritual connection to the land of their ancestors — one that involves both continuity and stewardship. Despite the importance of this spiritual connection, the amount of land allocated for use by Aboriginal peoples south of the 60th parallel is less than one-half of one per cent of the Canadian land mass.

Today, in Canada, as a result of being dispossessed of their ancestral lands and having had their cultures subjected to assimilationist policies, Aboriginal peoples face unacceptable economic and social conditions. In a nation which prides itself as the best country in the world in which to live according to the United Nations' Human Development Index, Aboriginal people, if you isolate their social conditions, would stand in sixty-third place among the nations of the world.

A treaty is a formal agreement between sovereign nations which recognizes specific rights and obligations. Treaty rights are those which are set out in the treaties negotiated between Aboriginal peoples and the Crown or Government of Canada. Recognizing Aboriginal nations as self-governing entities, both the French and British Crown entered into treaties with Aboriginal peoples on a nation-to-nation basis to clarify how they would live together.

For Aboriginal peoples treaties acknowledged and affirmed Aboriginal rights, including the right of self-government, and established a means by which land and resources could be shared. In other words, treaties provided a guarantee that Aboriginal peoples would be able to continue to live as they had before the arrival of newcomers. However, the federal government's interpretation of the treaties is much different. For the Crown, treaties clear lands of Aboriginal title so that settlement or resource extraction can proceed. In exchange for gaining title and control to large pieces of land, the federal government offers to Aboriginal peoples smaller parcels of lands — often as reserves — certain rights, and cash compensation.

The rights agreed to in the treaties, such as hunting and fishing, are protected under section 35 of the Constitution Act, 1982. Aboriginal peoples continue to call for a treaty implementation and renewal process.

The Royal Proclamation of 1763 confirmed Aboriginal land rights by acknowledging that Aboriginal peoples had title to their traditional lands. It established treaty making as the only means of sharing the lands and resources between the British Crown and Aboriginal nations, and declared that only the Crown could acquire land from Aboriginal peoples. The Royal Proclamation still stands in Canadian law with the Government of Canada replacing the role of the British Crown.

Land claims is a term used by the federal and provincial governments to describe the land rights struggle of Aboriginal peoples. Many Aboriginal people disagree with the term land claim because it suggests Aboriginal peoples are "claiming" something which belongs to the government.

Specific claims arise when the federal government fails to honour its treaties, agreements or legal responsibilities, or when it has mismanaged Aboriginal lands. Settlements typically include cash compensation for the land or resources taken unlawfully, or to purchase land to create a reserve.

Comprehensive claims arise when Aboriginal peoples assert Aboriginal rights and title to lands not covered by treaties. Most of these claims are in BC. Others are in Newfoundland, parts of Atlantic Canada, Québec, and the Yukon. The Nisga'a Agreement was a comprehensive claim, as was Nunavut.

Under the current process, the government of Canada decides on the validity of claims and acts as the defender of the Crown's interest. This blatant conflict of interest is one of the reasons the Royal Commission on Aboriginal Peoples, the Assembly of First Nations, and even the government body responsible for specific claims, have called for a new independent body to administer the claims process.

Criticism of the federal government's comprehensive claims policy is widespread. The United Nations, the Canadian Human Rights Commission and the Auditor General, to name a few, have been critical of the way Canada is addressing Aboriginal land rights.

The current federal comprehensive claims policy requires that Aboriginal peoples give up their rights, or title, to the large majority of their traditional territory as a condition of settlement in return for certain specified rights - a process called extinguishment. In 1999, the UN Human Rights Committee stated that the federal practice of "extinguishing inherent Aboriginal rights be abandoned" because it violated Article 1 of the International Covenant on Civil and Political Rights which "requires that all peoples must be able to freely dispose of their natural resources and wealth and that they may not be deprived of their own means of subsistence." In addition, most often, what little of the land base remains with the Aboriginal community is insufficient to create and maintain a viable economy. For this reason, many Aboriginal communities refuse to enter into the federal comprehensive claims process.

Canada's land claim process begins with the erroneous premise that it is granting Aboriginal land rights. Aboriginal peoples are looking for a process whereby Aboriginal jurisdiction and title to land are recognized, and resource revenue sharing is the basis for negotiating treaties with the federal and provincial governments.

Another problem is simply that the process takes too long. At the present rate of negotiating settlements, it will take more than a century to resolve the current specific claims and comprehensive claims. While negotiations drag on, the costs of managing this difficult and time-consuming process continues to grow and destructive development practices such as clear cut logging go on, threatening the lands and livelihood of Aboriginal communities.

For Aboriginal communities, reform of the land rights process is necessary to achieve agreements that will ensure they can maintain or rebuild sustainable, self-sufficient economies based on land and access to resources. The breaking of dependency is vital to peoples' pride and identity and will best enable Aboriginal peoples to find solutions to the challenges ahead.

For non-Aboriginal peoples, reform of the land rights process will create certainty in all areas where there are unresolved questions of Aboriginal title and rights.

For everyone, the cost of not addressing land rights is horrendous in terms of social and economic costs. The Royal Commission on Aboriginal Peoples predicted that it will cost Canada $7.5 billion annually if it does nothing to reform Aboriginal land rights policy.

Established in 1991 after the Oka standoff, the Indian Claims Commission is a government body that reviews only specific claims. In April, the current co-chair of the Commission, called for it to be dismantled and replaced by a new agency, stating that the current system is not working.

The Royal Commission on Aboriginal Peoples (RCAP) was struck in 1991 to explore one overriding question: What are the foundations of a fair and honourable relationship between the Aboriginal and non-Aboriginal people of Canada? Five years later it released a comprehensive 4000 page report that concluded: "The main policy direction [assimilation], pursued for more than 150 years, first by colonial and then by Canadian governments, has been wrong." It stated that reforming the land claims process and ensuring Aboriginal communities have an adequate resource base is the key to economic development and healthy communities.

What does the United Nations say in terms of Canada's treatment of Aboriginal peoples?

Recent UN reports reviewing Canada's domestic record on human rights issues have cited major concerns regarding the social and economic situation of Aboriginal Peoples. In April, 1999 the UN Human Rights Committee condemned Canada's failure to respect the rights of Aboriginal peoples in Canada to self-determination, including their rights to adequate lands and resources. It stated that Canada should "take decisive and urgent action towards the full implementation of the Royal Commission on Aboriginal Peoples (RCAP) recommendations on land and resource allocation." In December, 1998 the UN Committee on Economic, Social and Cultural Rights "endorsed the recommendations of the RCAP that policies which violate Aboriginal treaty obligation and extinguishment, conversion or giving up of Aboriginal rights and title should on not account be pursued" by Canada.

Band Council systems were imposed on Aboriginal communities by the federal Indian Act. As in any society, a small percentage of Aboriginal communities have leaders and band councillors who abuse this power conferred by the Indian Act.

Today, many Aboriginal communities are struggling to shape systems of governance that reflect their traditions, values and needs in spite of the restrictions of the Indian Act. For instance, the Pimicikamak Cree Nation in Manitoba have established four community councils: the Elder's Council, Women's Council, Youth Council and Chief and Council. In BC, the Gitxsan have re-affirmed their hereditary system in the decision-making process of the nation and in its relations with the provincial and federal governments. These structures ensure the traditional belief of direct community involvement in protecting the land for future generations will become predominant.

Won't non-Aboriginal people lose land as a result of the land-rights settlements?

In the 400 years since contact in Canada, no government has given private land to Aboriginal peoples in land-rights settlements, and no court will allow it. Only Crown land is used in claims settlements.

The Jubilee themes of release from slavery, redistribution of wealth, and renewal of the earth all centered around the vital aspect of survival for the people of the Old Testament - land. Two thousand years after the people of Israel were instructed by the prophets on how to live as a just society, Canadian society is still struggling with bringing justice to the Aboriginal land issue.

The fight for Aboriginal title and land rights in British Columbia has existed since the arrival of the Europeans. On May 11, 1987 the Gitxsan and Wet’suwet'en initiated a court action to establish ownership and jurisdiction over their traditional territories in northern BC (55,000 sq. km). In December of 1997 the Supreme Court of Canada issued a landmark decision on this case which has become known as Delgamuukw. Delgamuukw validates Aboriginal oral histories as evidence of land ownership and acknowledges Aboriginal title and rights.

In Delgamuukw, the Supreme Court of Canada found that Aboriginal title is a collective right in land which encompasses the traditional territory of an Aboriginal Nation. It arises from the prior use and occupation of the land by Aboriginal peoples. It is also the right to use the land for a variety of activities, traditional or modern, as long as those activities do not destroy the land’s ability to sustain future generations. In some instances, Aboriginal title may result in exclusive use and occupancy of land by the Aboriginal community.

Jubilee is a time of renewal, of new beginnings, of redressing societal wrongs, of renewed spirituality through a return to right relationships with our brothers and sisters; it is a time to right the wronged relationships between ourselves and God, between ourselves and the land. Is it not also precisely the time to reflect on what the Jubilee's promise of new beginnings means with respect to righting the relationship with Aboriginal peoples? The Delgamuukw decision is an opportunity for Canadian churches who are celebrating Jubilee to work for justice for Aboriginal peoples: the recognition and implementation of Aboriginal land rights.

This backgrounder was prepared for the Canadian Ecumenical Jubilee Initiative by the Aboriginal Rights Coalition (ARC). For more information, contact ARC or website . The petition and other actions for justice for Aboriginal peoples are also supported by materials in the Jubilee Year 3 leadership guide, Restoring Right Relations, which can be obtained from the Jubilee office at . For publication and campaign materials order information, go here.