May/97: BC Treaty Commission: Extinguishing Rights

EXTINGUISHMENT OF ABORIGINAL RIGHTS OR TITLE

Raven's Eye
May, 1997

Fear of extinguishment of Aboriginal rights and title by First Nations in British Columbia has been a point of contention between those that choose to treaty and those that do not. Chief Joe Mathias, one of the leading voices at the First Nations Summit, the organization that represents the issues and concerns of First Nations involved in the province's treaty process, states in the video, Treaty Making in BC:

"Those that choose to not participate in the negotiation process, have their own reasons. One of them, as I understand, is being sovereigntist - that the only government that can treaty with a First Nation would be the Government of Canada. If it's not the Government of Canada then it's the United Nations as a whole.

"They take a very clear political position on that ground. There's concern about the issue of extinguishment and I think their position is valid in that regard, that negotiations are leading to some form of extinguishment of Aboriginal rights, guaranteeing and affirming rights to non-Indians." The federal government's current policy concerning comprehensive claims is designed to "conclude agreement with Aboriginal groups that will resolve th and legal ambiguities associated with the... concept of Aboriginal rights."

Blanket extinguishment of Aboriginal rights is a clause in a treaty that seeks to eradicate completely all land rights of the Aboriginal party to the agreement. Partial extinguishment refers to provisions that seek to eliminate some, but not all, Aboriginal land rights in the territory in question. The BC Claims Task Force recommended that British Columbia not pursue a policy of extinguishment in treaty negotiations with Aboriginal communities in the province. To this end, the parties involved in the BC treaty process, "must strive to achieve certainty through treaties which state precisely each party's rights, duties, and jurisdiction."

The Nisga'a Agreement-in-Principle was struck Feb. 15, 1996. In it, the Nisga'a relinquished specific Aboriginal rights for certainty in others. The negotiations with the provincial and Canadian governments inevitably altered each party's rights, duties and jurisdiction over land and resources. For some, the government gave too much away; for others, the Nisga'a relinquished too much. Whatever the outcome, the Agreement-in Principle will form the basis of concluding the Nisga'a's final agreement.

This first treaty was negotiated outside of the BC Treaty Commission, but it will be scrutinized by First Nations that are in the current treaty negotiation process.


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