A new partnership

- The Royal Commission on Aboriginal Peoples described the Report of the Hon Alvin Hamilton in this manner:

In December 1994, the minister of Indian affairs appointed Alvin C. Hamilton, a former associate chief justice of the Manitoba Court of Queen’s Bench, as an independent fact finder to explore and report on existing federal claims policies and other potential models for achieving certainty of rights to lands and resources through land claims agreements. The appointment was made in response to a June 1994 report of the House of Commons standing committee on Aboriginal affairs that asked the minister to “consider the feasibility of not requiring blanket extinguishment”. The fact finder’s report, entitled Canada and Aboriginal Peoples: A New Partnership, was released in September 1995.

In his report, Mr. Hamilton explicitly rejected the current federal policy requiring extinguishment or surrender of some or all Aboriginal rights to lands and resources in exchange for rights and benefits set out in an agreement or modern treaty. He offers an alternative to eliminate the need for a surrender clause while achieving the necessary level of certainty. This alternative has six essential and interconnected elements:

1. recognition in the preamble that the Aboriginal party to the treaty has Aboriginal rights in the treaty area;

2. as much detail as possible concerning the rights to lands and resources of each of the parties to the treaty and of others affected by it;

3. mutual assurance clauses in which the treaty parties agree that they will abide by the treaty and exercise rights only as set out in the treaty;

4. mutual statements that the treaty satisfies the claims of all parties to the lands and resources covered by the treaty and that no future claims will be made with respect to those lands and resources except as they may arise under the treaty;

5. a dispute resolution process with broad powers, including binding arbitration and judicial review, to ensure that treaty obligations are met and disagreements about the treaty are addressed; and

6. a workable amendment process whereby the parties can, if they agree, amend certain provisions of the treaty to respond to changing circumstances.282

We are pleased to observe that the fact finder’s recommendations are similar to the alternative presented in our special report on extinguishment, Treaty Making in the Spirit of Co-existence, as well as to recommendations later in this chapter dealing with the content and scope of new or renewed treaties.

The fact finder was asked by the minister to consider our special report when conducting his deliberations. Mr. Hamilton did express some disagreement with our second recommendation, which he sees as endorsing partial extinguishment in certain circumstances. He does not believe that “there are any circumstances that warrant even a partial extinguishment or surrender of Aboriginal rights whether one is dealing with Aboriginal rights in general or more specific Aboriginal rights with respect to lands and resources”.283 In our view, his disagreement is one of degree more than of kind, particularly if our recommendation is read in light of our discussion in the special report:

Requiring partial extinguishment as a precondition of negotiations is also an inappropriate means of achieving co-existence. Partial extinguishment often results in the extinguishment of rights to far more territory than the term ‘partial’ perhaps implies. Because of its permanent effects, any decision to agree to partial extinguishment of Aboriginal title should be made after a careful and exhaustive analysis of alternative options. We do not wish to suggest in this report that an Aboriginal nation should never be entitled to exchange some of its territory for certain treaty-based benefits. Nor do we wish to foreclose the availability of bargaining solutions that rely in part on partial extinguishment techniques. Nevertheless, we hope that the approach we propose will prove more attractive in most instances.284

The Commission cannot support the extinguishment of Aboriginal rights, either blanket or partial. It seems to us completely incompatible with the relationship between Aboriginal peoples and the land. This relationship is fundamental to the Aboriginal world view and sense of identity; to abdicate the responsibilities associated with it would have deep spiritual and cultural implications. However, we recognize that there will be circumstances where the Aboriginal party to a treaty may agree to a partial extinguishment of rights in return for other advantages offered in treaty negotiations. We would urge, however, that this course of action be taken only after all other options have been considered carefully.

Mr. Hamilton had a number of useful suggestions to improve treaty documents. He was critical, for example, of the language of the recent Yukon Umbrella Final Agreement:

I attempted to read the Umbrella Final Agreement, Council for Yukon Indians. While I have some years of experience as a practising lawyer and as a judge, I must say that I found the document convoluted and very difficult to follow. I understood what a presenter meant when he said one would need to be a lawyer or a negotiator who has been involved in the negotiation of a treaty to be able to understand it.285

Mr. Hamilton’s opinion, which we share, is that the language used in treaty documents should be clear, plain and understandable to everyone, not just to those involved in preparing the draft.

Mr. Hamilton also believes that the certainty desired by all parties can be provided by clearer, more concise treaties than those of recent years. Concerning land regimes, he suggests that the treaty simply state at the outset the nature of each type of land within the treaty area and then give a general outline of the rights of each party with respect to each category. This is an excellent suggestion.

Our point of disagreement is that Mr. Hamilton proposes only two categories — settlement land (that portion owned by the Aboriginal party) and non-settlement land (the rest of the land within the treaty area that is owned by the government or is privately owned and to which the Aboriginal party has special rights). We envision instead a tripartite land scheme involving settlement land, shared land (land under joint jurisdiction and management by the Crown and Aboriginal parties) and non-settlement land. We believe this land regime would provide greater self-sufficiency for Aboriginal peoples than the bipartite scheme favoured by current claims policy.

We share Mr. Hamilton’s view that the federal government’s present approach to the treaty process is inappropriate. We also agree with his comments on the lack of government response to the many criticisms of claims policy made over the years.