Dr. Nowlin speaking at SACPA

By Aaron Mahoney

SACPA

Aboriginal rights, Canadian law and the future of land claims in Canada

Apr 25, 2019 | 2:26 PM

LETHBRIDGE, AB – Truth and reconciliation has been a focal point for both Indigenous and non-Indigenous Canadians for several years now both in politics and in everyday life.

By most accounts, progress is being made, but underneath the surface what could be the next issue that will take the most time to sort out?

It could be land claims, according to Dr. Christopher Nowlin.

Nowlin, who was born in Lethbridge, is currently a professor at Langara College in Vancouver teaching about Canadian law and Aboriginal law.

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He was in Lethbridge on Thursday, April 25, to talk at the Southern Alberta Council on Public Affairs about whether Aboriginal rights and Canadian law are reconcilable.

“My talk focused on the relationship between Aboriginal rights and Canadian law, which is a sort of subtle and not well-understood topic by many, many Canadians. I’m addressing the question of is it an easy relationship, or are there some difficulties?”

Aboriginal rights flow from the Rule of Law, a notion to which the Canadian constitution ascribes, and they should require no justification to anyone because in 1982 the constitution affirmed and recognized existing Aboriginal rights.

Therefore, in theory, Aboriginal rights are entirely reconcilable with Canadian law because they’re a fundamental part of a legal system that should be internally reconcilable.

However, one sense in which Aboriginal rights can be said to be irreconcilable with Canadian law is that, from the perspective of Indigenous peoples, a foreign political-legal entity such as Parliament has never had a legal right to govern any aspect of their lives without their consent, according to Nowlin.

So, is it an issue in our country right now? Nowlin believes it is.

“I don’t have the pulse of Canadians, but I think it’s important not just because of the pipeline issues between Alberta and B.C. I think in British Columbia it has the most heightened importance of all of Canada because land claims are becoming a bit more prevalent now, which is fairly new,” Nowlin stated.

Many Aboriginal rights across the country come from treaties and historically what generally separates B.C. from that is treaties stopped being made at one point in the province.

“A lot of the treaties across the country were land sales where the crown on paper acquired land ostensibly and lawfully. The typical issues that will arise in Alberta will be rights issues around fishing, hunting, and that kind of thing but in B.C. the stakes are much greater because they’re land title issues. It’s really about who owns the land, in 2014 a small band of First Nations people did win a land claim in Canada for the first time.”

That was the Tsilhqot’in case, where the Supreme Court of Canada granted a declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot’in First Nation.

“The government in B.C. is starting to make comprehensive land claim negotiations, so they’re entering into what are essentially very large contracts, almost like trade deals, with the relevant Indigenous groups. They contain provisions for self-governance and law-making jurisdictions, but they’re largely commercial treaties.”

So far in B.C., that’s been the answer, for the provincial government to enter into what Nowlin describes as very kind of sophisticated business deals with Indigenous groups rather than fight it out in court.

The courts will continue to resolve Aboriginal rights claims this century, in ways that will probably not satisfy all Indigenous and non-Indigenous peoples in Canada, but that fact doesn’t mean that Aboriginal rights and Canadian law are irreconcilable.

Instead, the legal hope and expectation of Indigenous and non-Indigenous people in Canada are to diminish conflict lawfully and peacefully, so everyone can eventually live contentedly side-by-side, each society’s system of self-governance paying equal and practical respect to the other’s system.

Nowlin believes the Tsilhqot’in case in 2014 might give us an indication of how things will work in the future.

“That was the first time the government had ever lost a suit that way, and my understanding anecdotally is the province is now in negotiations with many of the Indigenous people across B.C. who have either current land claims or plan on bringing them. They don’t want to lose them, so they’re negotiating, and that’s what I think we’re going to keep seeing going forward.”