Aboriginal title isn’t about compassion — it’s about law
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February 19, 2016 at 8:25 am #386
Canadians could earn a deeper love for their country if they shifted their perspective on the timely issue of aboriginal title.
Too often, the issue of aboriginal land rights — how they work, how they should be respected and what political powers they give indigenous Canadians — get lumped together with our more emotional reactions to the dismal living conditions afflicting many Aboriginal Canadian communities.
The national tragedy of missing and murdered indigenous women, the below-average education attainment in many aboriginal communities and the fact that a G7 country still hasn’t provided potable water to all of its citizens — issues like these eclipse the comparatively boring matter of how Canadian law respects and protects land ownership by communities that existed before European settlement.
But all socio-economic indicators in indigenous communities flow from the settlement or uncertainty of aboriginal title. The power of title remains almost hidden to most Canadians. Last week, Prime Minister Justin Trudeau opened the door to a higher level of collaboration with indigenous Canadians on a “nation-to-nation” basis, which could give Canadians a chance to appreciate the true nature of aboriginal title in Canada.
It is by no means certain that Canadians will buy into his pitch.
The fact that Canadians shy away from honestly appreciating aboriginal title is about more than just boredom. Many Canadians enjoy the emotional benefits of projecting their compassion on Aboriginal Canadians in need — as an expiation of lingering colonial guilt.
Their efforts to raise living standards — which give them a greater say over land use — are perceived as a choice made by the more powerful party.
But this simply is not the truth. Respect for aboriginal title in Canadian law is not a choice Canadians make because they’re good people. It is a responsibility that Canadian governments cannot avoid.
What most Canadians do have a choice over is whether to resist a respect for aboriginal title. The Harper government embodied this resistance in its reforms of environmental assessment and pipelines laws several years ago — which, in turn, sparked an even greater backlash against major pipeline projects than had previously existed.
But Harper was only doing what most Canadian governments have done over the past half-century: obfuscate, delay and take the fight to the courts, where indigenous communities have nearly always won. Trudeau’s comments last week suggest this approach may be over.
The substance of Trudeau’s statements remain to be seen. ‘Aboriginal title’ means many different things across the country. Its relevance in the political conversation varies based on the substance of historical treaties, the interest in communities themselves and the legal and political rules set by Ottawa, the provinces and the territories.
The Liberal government hasn’t explained how a nation-to-nation relationship would change key aspects of those rules — like the frameworks for negotiation of comprehensive or specific claims, regulatory policies for industrial projects, funding to accelerate self-government and other kinds of political developments.
It’s such a complex issue that extrapolating from Trudeau’s early comments would be a mistake.
But we can say today that this political opening brings an opportunity for cultural change — a chance to abandon the idea that helping indigenous Canada is an act of compassion and replace it with the fact that aboriginal title is about obeying the law, an obligation enshrined in constitutional documents.
Understanding what Canadian law actually says about the rights of societies that existed before the colonial era could offer many Canadians a new reason to be proud of their country.
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