12 April 2009

The Proposed Recognition and Reconciliation Act

Although advancement of British Columbia's proposed Recognition and Reconciliation Act was postponed until after the provincial election, current political indications point to its passage within the coming year, whatever its final form. Premier Gordon Campbell has suggested that passage of the proposed Act is not merely a provincial but a national imperative: "There is nothing more important than British Columbia leading the way in recognizing the constitutional rights of aboriginal people."

The goal is laudable. Questions, however, arise. Most immediately, what will be the Act's final language? At present, we have no draft to discuss. We have only a discussion paper and few other related documents. The discussion paper makes it clear that the Act will commit the province to recognizing aboriginal rights and title. More specifically it will commit the province to recognizing "Aboriginal rights and title exist in British Columbia throughout the territory of each Indigenous Nation that is the proper title and rights holder."

But there are less immediate questions deserving of answers. One such question may be framed as follows. The Canadian state already has aboriginal rights recognition legislation binding on the provincial legislature and government as well as parliament and the federal government. Section 35(1) of the Constitution Act, 1982 says:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The question, then, is this. Since British Columbia is already constitutionally obligated to recognize and affirm the aboriginal rights and titles of First Nations, why is the proposed Act necessary? The short answer is, it is not. The province is already obligated to recognize and affirm aboriginal rights and title and even reconcile them with its share in the Crown's assertion of sovereignty over aboriginal peoples and territories.

But if it is not necessary, why is the current government promoting it? One attractive - but wrong - answer is that the proposed Act will serve as the province's way of implementing Section 35(1), that is, the Act will serve as its way of giving effect to its share in the constitutional promise to recognize and affirm the aboriginal rights and titles of First Nations.

Let me explain why the answer is wrong. In the Delgamuukw case, the Supreme Court of Canada determined that aboriginal title is a collective right to the exclusive occupation and use of the land. Recognition of aboriginal title implies then recognition of the title holder's right to collectively and exclusively decide to what uses the land and resources shall be put. Subject to certain justifiable interference, the right is exclusive of all others, including the province. Were British Columbia really, then, to recognize aboriginal title "throughout the territory of each Indigenous Nation" as some are convinced the proposed Act will require, the province would have to keep its hands off most of the land and resources subject to aboriginal title. Since we can be certain beyond a shadow of a doubt that the province is not going to do any such thing, we can be similarly certain that the proposed Act will not recognize aboriginal title as determined by the Supreme Court of Canada in Deglamuukw and confirmed in subsequent cases.

What the current government is promoting by advocating the passage of the proposed Act is recognition of non-exclusive aboriginal title, that is, title that does not exclude the province from the land and resources, that secures Crown and Crown-generated interests thereon and thereto, and in the main preserves the status quo. The current government is hoping to give its recognition to this less-than-aboriginal-title in exchange for indigenous consent to and thus legitimacy for what the province has been about for roughly 150 years.

In the final analysis, deciding whether the province's proposed Act is acceptable and thus whether its underlying exchange is reasonable is really up to First Nations peoples. It is unfortunate, however, that the title as well as the language of the proposed Act will ape Section 35(1)'s language of recognition and affirmation of aboriginal rights despite the fact that it most certainly will not recognize and affirm or thus reconcile one of the most fundamental aboriginal rights, that is, aboriginal title.

Michael Lee Ross

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