Domesticating doctrines: aboriginal peoples after the Royal Commission.

• Author: Borrows, John

The 1996 Report of the Royal Commission on Aboriginal Peoples addressed the difficulties inherent in the domestication of Aboriginal and treaty rights in Canada. While Aboriginal peoples can now legitimately question the injustice of colonial encounters and lay claim to pre-existing rights within the nation states in which they live, it is also becoming increasingly clear that these states can extensively modify, infringe, or extinguish indigenous rights. The Report indicated that Aboriginal peoples require the choice and the ability to pursue objectives that differ from those of the Canadian state. Furthermore, Aboriginal peoples desire greater control over the development of their land and resources so that it conforms more to their values and objectives. This article questions whether the Commission's recommendations with respect to Aboriginal and treaty rights to land and resources have been effectively taken into consideration in subsequent legislative and jurisprudential developments.

The author's analysis demonstrates that the recommendations and proposals with respect to treaties, treaty making, Aboriginal land base, Aboriginal title, the Canadian government's fiduciary obligation to Aboriginal peoples, and Metis rights to land and governance have yet to be sufficiently observed. While the Report has certainly influenced government policy, Aboriginal peoples am nevertheless denied the recognition of Aboriginal and treaty rights to lands and resources in the manner recommended by the Commission.

Le Rapport de la Commission royale sur les peuples autochtones de 1996 etudiait les difficultes reliees a la domestication juridique des droits autochtones et issus de traites au Canada. Les peuples autochtones peuvent remettre en question l'injustice de la colonisation et reclamer des droits pre-existants a l'interieur des Etats darts lesquels ils vivent, mais il devient de plus en plus evident que ces Etats peuvent modifier, enfreindre ou aneantir ces droits dans une large mesure. Le Rapport indiquait que les peuples autochtones demandent le choix et la possibilite de viser des objecrifs differents de ceux que s'est fixes l'Etat canadien. Ces peuples aspirent egalement a un plus grand degre de controle sur leurs terres et ressources qui refleterait mieux leurs propres buts et valeurs. Cet article etudie l'importance accordee aux recommandations de la Commission en ce qui concerne les droits autochtones et issus de traites dans la legislation et jurisprudence subsequentes.

L'analyse que fait l'auteur des developpements qui ont suivi le Rapport montre que les recommandations faites dans le cadre de ce rapport a l'egard des traites, de leur conclusion, des terres autochtones, des titres autochtones, de l'obligation fiduciaire du gouvernement canadien a l'egard des peuples autochtones ainsi que des droits at la terre et a l'autodetermination des Metis n'ont pas encore ete suivies de maniere satisfaisante. Bien que le Rapport ait eu une influence certaine sur les politiques gouvernementales, les peuples autochtones n'ont toujours pas droit a une reconnaissance de leurs droits, particulierement ceux issus de traites, d'une maniere qui serait conforme a ces recommandations.

Introduction I. Treaties A. Peace and Friendship Treaties B. Numbered Treaties C. Treaty Initiatives 1. Entering, Implementing, and Renewing Treaties 2. Treaty Institutions: Getting Out of the Courts D. Summary II. Aboriginal Title A. Congruence: Aboriginal Title, the Commission, and the Supreme Court B. Differing Views: The Incongruity between the Commission and the Court III. Fiduciary Duties A. Inconsistencies between the Commission and the Court B. Bridging Delgamuukw and the Commission IV. Metis Land and Resource Issues Conclusion Introduction

Aboriginal peoples have enjoyed some substantial gains with respect to Aboriginal and treaty fights in recent years. There is a growing recognition in Canada and internationally that indigenous peoples are entitled to exercise fundamental responsibilities within their traditional territories. In Australia the existence of Aboriginal title has been recognized, and a debate about its contemporary survival has reached the legislatures, courts, and general populace. (1) In New Zealand the binding nature of the Treaty of Waltangi has been acknowledged, and steps have been taken to ensure that the Maori have sufficient land to sustain their culture. (2) In Guatemala reconciliation with the indigenous Mayan population has begun through the findings of the Commission for Historical Clarification. (3) In Malaysia courts have accepted the principle that indigenous peoples have fights to the use and occupation of their traditional territories. (4) The courts of Norway, Sweden, and Finland have recognized certain resource fights of the indigenous Sami; the legislatures have granted them political representation at the national level. (5) Columbia's recent constitution recognizes indigenous fights; numerous court decisions interpreting these provisions have given a large measure of protection to Aboriginal title and jurisdiction. (6) In the United States Native Americans have been successful in expanding jurisdiction in tribal law-making power and economic development. (7) In Canada the proprietary nature of Aboriginal title and the liberal interpretation of ancient treaties has been recognized and affirmed by the country's highest court. (8) Finally, indigenous peoples from around the world met together for a decade and articulated a charter of rights and responsibilities for themselves and the states with which they associate in the Draft Declaration of Indigenous Rights. (9)

While positive in many ways, these developments have not come without a price: Aboriginal peoples continue to sustain great losses in their relationships with settler states, even though the maturity of the colonial relationship is somewhat less oppressive than in the past. Aboriginal peoples can now legitimately question the injustice of colonial encounters and thereby lay claim to pre-existing rights within the nation states in which they live. Nevertheless, it is becoming increasingly clear that these same states can extensively modify, infringe, or extinguish indigenous rights. The domestication of Aboriginal rights represents yet another stage in colonialism's expansion that contains both positive and negative implications for Aboriginal peoples. In some respects the colonial relationship is less oppressive and coercive than it has been in the past. Most Aboriginal peoples are no longer subjected to explicit policies of forced assimilation that attempt to completely eradicate their societies and cultures. (10) Instead, it is widely presumed that Aboriginal peoples will continue to exist within their respective nations, and that indigenous land, governments, and practices will be reconciled to fit within national settler states. For some, this represents a chance for a better standard of living in terms of such measures as education, housing, and per capita income. For others, however, lockstep conformity with the state and its goals foreshadows a substantial loss of independence and separate cultural development. From this perspective, the subordination of Aboriginal fights to legal procedures of modification, infringement, or extinguishment does not facilitate strong national relationships. Assimilation and the loss of Aboriginal nations and culture are seen as a continuing threat from this standpoint, even if the context within which it occurs is changing. Many Aboriginal peoples are therefore demanding that surrounding states limit their legal and judicial intrusions into indigenous affairs.

Canada's Royal Commission on Aboriginal Peoples ("Commission") recognized that Aboriginal nations should be able to pursue a different mode of living if this was their choice, and made recommendations to limit state intrusions. (11) While the Commission did not take a position that was against national development in Canada, most chapters in the Report of the Royal Commission of Aboriginal Peoples ("Report") draw upon indications by Aboriginal peoples of preferences for development that differ from the kind of development pursued by Canada. Indigenous people appearing before the Commission made repeated references to pursuing their own relationships of spirituality, culture, and tradition when relating to the land and others. (12) These positions are not, by and large, against economic and social expansion in the broader nation state. In fact, these aspirations can even be complementary with it. (13) They demonstrate that Aboriginal peoples wish to share more of the direct benefits of development. Aboriginal peoples also show a desire to have greater control over how development is undertaken to ensure that the development better conforms to their values and objectives.

Aboriginal peoples told the Commission that certain conditions were necessary to enable them to pursue their particular goals. The Commission recognized many of these aspirations and embodied them in its recommendations. The Report noted that Aboriginal peoples need the Crown to implement, renew, and fulfill the terms of their historic treaties. (14) The Report indicated that Aboriginal peoples require a process to establish new treaties between the Crown and non-treaty nations in regions where no treaties exist. (15) The Commission wrote that Aboriginal peoples require a larger land base over which they can be self-governing to secure culturally appropriate land and resource use. (16) It declared that Aboriginal peoples need policies and principles that would recognize Aboriginal title as a legal interest in land and that would require Aboriginal consultation or consent prior to federal and provincial use of that land. (17) The Commission stated that the Crown should actively pursue its special fiduciary obligation to preserve Aboriginal lands and resources. (18)...