Resource Developments and Aboriginal Land Rights

L.C. Green is a university professor of political science and an
honorary professor of law at the University of Alberta.

Aboriginal Self-Determination is an account of the proceedings of a
conference organized at the University of Toronto by the Institute for
Research on Public Policy between September 30 and October 3, 1990. The
tone of the conference was set by Frank Cassidy, when he defined
self-determination as “the right and the ability of a people or a
group of peoples to choose their own destiny without external
compulsion. It is the right to be sovereign, to be a supreme authority
within a particular geographical territory.” This reflects the view of
Georges Erasmus, National Chief of the Assembly of First Nations, that
the aboriginal people—Dene and Inuit alike—possessed sovereignty
when the whites came, and that this sovereignty has never been
surrendered. John Tait, Deputy Minister of Justice and Deputy Attorney
General of Canada, spoke not of self-determination but of
self-government—“the right of aboriginal peoples to exercise control
over matters which affect their lives,” a view that falls far short of
any of the opinions put forward on behalf of the aboriginals. So long as
this basic conflict continues, it will be impossible to reach any
solution that will be acceptable to the aboriginal peoples and to the
government of Canada. Compromise is essential on both sides, but there
can be no compromise until each puts forward a view of what it wishes
that marries a concept of self-determination with that of the continued
existence of Canada as a federation of which the aboriginal peoples
remain a constituent and vital part.

But if the statements made at this conference are to be considered the
last word on the matter, there is perhaps little scope for such
compromise. Laurence Coutoreille dealt with the relationship between
self-determination and the treaties, basing his argument on the
contention that the existence of the treaties confirms the aboriginal
enjoyment of self-determination as nations and the Crown’s recognition
thereof. If this is a proper representation of the current aboriginal
view, it will produce a reaction that is equally rigid on the other
side. Determination to secure the most extreme land rights, which often
threaten long-established nonaboriginal rights (particularly in the
field of resource development), will only produce a hardening of views
and support for those who contend that there is no need to consider any
aboriginal rights until what they consider as more vital constitutional
issues have been settled.

This problem is examined in Richard Bartlett’s monograph on Resource
Development and Aboriginal Land Rights. He is of the opinion that the
whole issue “requires an accommodation between aboriginal title and
resource development if development is to proceed [and] an agreement
between an aboriginal group and the federal government providing for the
settlement of accommodation of aboriginal title to resource disposition
and development is needed to satisfy the constitutional restraints”
stemming from, in particular, the Constitution Act, 1982.

As to the position under the Indian treaties, their “terms declared
the conditions upon which resource development might proceed . . . [and
the] Natural Resource Transfer Agreements impose a constitutional
obligation with respect to outstanding treaty land entitlement upon the
provinces [and this obligation] must be construed so as to enable the
fulfilment of the treaty obligations of Canada.”

The lesson to be learned from both these publications is that if Canada
is to enjoy a peaceful future, some means, legally based and politically
acceptable, must be found to satisfy the demands of the aboriginal
peoples for some measure of self-determination. At the same time, the
aboriginal peoples must recognize that the world of today is not that of
the period of discovery or even of treaty-making. Compromise
(recognizing established rights of aboriginals and nonaboriginals alike,
together with acknowledgment of modern developments and such matters as
resource development or regulation in the name of conservation,
regardless of established rights) is essential.