Aboriginal Title and Rights and Public Assets
Dec 16th, 2007 by cmenzies
Speakers at the Friends of Pacific Spirit Park rally on December 9th, 2007, spoke against the ‘transfer’ of a ‘public asset’ to ‘settle a provincial’ debt and to ‘save’ the UBC Golf Course. While the speakers at the rally may not feel or think that they were rallying against the Musqueam Reconciliation Agreement, any First Nations person or any person who has worked with First Nations for any length of time would find it hard to see the fine distinction that the speakers may well think they were making. First Nations communities constantly face non-aboriginal communities who will say “We support legitimate land claims” and then say that the specific item –be it fisheries, forestry, energy, water, or parkland- trumps the ‘particular’ interest of the First Nations because the non-aboriginal claim is in the ‘interest of all of us.’ For over 30 years I have had opportunities to witness many different non-aboriginal groups rally the same arguments in their opposition to resolving land claims and affirming aboriginal title and rights. The current provincial government even entered office opposing many specific aspects of reconciliation but has found, as they matured in office, that their populist opposition to aboriginal title and rights is not supported in law. So, short of a revolution, reconciliation agreements, such as the one entered into with Musqueam, will be the order of the day –whatever the stripe of the government.
One Response to “Aboriginal Title and Rights and Public Assets”
Reconciliation and the Law
The importance of reconciliation, both inside and outside the treaty process is the key concept of modern Aboriginal law as repeatedly stressed by the Supreme Court of Canada in its judgments:
In Haida Nation [2004] 3 S.C.R. 511, available on-line at:
http://scc.lexum.umontreal.ca/en/2004/2004scc73/2004scc73.html
Chief Justice McLachlin writing for the entire Court said at paragraph 32:
“The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people.”
The central role played by reconciliation as the fundamental objective of the modern law of aboriginal and treaty rights was emphasized by Justice Binnie, writing for the Supreme Court of Canada in Mikisew Cree [2005] 3 S.C.R. 388,paragraph 1, available on-line at: http://scc.lexum.umontreal.ca/en/2005/2005scc69/2005scc69.html
“The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding.”
Despite the criticism aimed at the Provincial Government by some of those who seek to overturn the recent Reconciliation Agreement reached with the Musqueam, the negotiations that led to that Agreement is exactly what the Court has been urging the parties to do. The alternative is costly and adversarial litigation that, far from bringing reconciliation, merely perpetuates the history of grievances and misunderstanding that Justice Binnie referred to.