The Trap of Federal Policies
Olthuis and Townshend also explain that equity law is a form of justice that is administered according to rules of fairness. Equity law seeks to restore wronged parties to the conditions that would have existed if the breach had not occurred. They also explain that a fiduciary is a person who stands in a position of trust to another. Interestingly, fiduciary responsibility emerges from equity law and as such it is reasonable for a person relying on the fiduciary to expect the fiduciary to act with a degree of fairness, loyalty, and honourable conduct. Equity law and fiduciary responsibilities extend to policy-making and given this, unilaterally drafted federal policies, which construct limitations on Indigenous people in their attempt to live better, are a violation of equity law and the Crown’s fiduciary responsibilities.
Olthuis and Townshend also address the issue of whether the compensation amounts awarded First Nations fall within legal guidelines. According to equity law, the general principle behind compensation is that the imposed loss is to be made good where compensation is to be assessed with reference to the value of the assets at the date they are restored rather than the date at which they were improperly taken. This means that any increase in the market value of the assets is the responsibility of the trustee. Olthuis and Townshend argue, “It is our view that the federal specific claims policy and process with respect to validity and compensation violates the principles of equity, the federal constitutional responsibility and the fiduciary duty owed” (82).
The Slap of Agreements in Principle
That said, it is important to stress that many people are not skilled at reading policy and law, AIPs included. Reading them is the specialized skill of lawyers and policy makers. Olthuis and Townshend are two qualified individuals that have evaluated past AIPs to determine why it is that they cannot be relied upon as a true source of land claims and self-government settlements. They provide a discussion of the James Bay Cree and the Northern Quebec Agreement.
In asking, “What is it about the structure of the claims settlements that leads to non-implementation?” Olthuis and Townshend identify three factors that have led to non-fulfillment: A lack of political will on the part of non-indigenous governments; Vaguely worded provisions in the agreements; and, Missing elements (41).
A lack of political will is the practice whereby Canada, in their desire to eliminate their constitutional and legal obligations as cheaply as possible, defines their responsibilities in very narrow terms rather than addressing the real issues. In terms of vague provisions, Olthuis and Townshend argue this approach occurs when matters cannot be agreed upon resulting in the issues being papered over. This papering over, or alternatively stated vagueness in agreements, makes it difficult for Indigenous peoples to then rely upon the AIP to assure the fulfillment of their rights. In terms of missing elements, this approach occurs when provisions are excluded in the final agreements, in particular provisions related to jurisdiction of Indigenous governments. As a result, the final agreements lack clarity on the jurisdiction needed to viably operate the programs and institutions established in the very agreements. Thus, although final agreements are achieved, unresolved matters resurface.
Olthuis and Townshend conclude that due to a lack of political will, papering over issues, and a lack of jurisdictional clarity, the governments of Canada are merely negotiating a document rather than a viable future for Indigenous people. In the case of the James Bay Cree, the document was one of 450 pages loaded with highly technical and legally complex jargon.
Olthuis and Townshend also offer that once these agreements are ratified they are viewed as the beginning of the end of a relationship between governments and First Nations, rather than the beginning of a new relationship, where Indigenous people are then forced to litigate Canada into implementation. At the same time, these final agreements provide for the legislative extinguishment or the release of all Indigenous interests to the territory covered by the AIP.
The Union of British Columbia Indian Chiefs offer, “Modern land claims agreements will create a double standard in which the interests of the federal and provincial Crowns and third parties are recognized. These rights will simply continue to exist, they will change and adapt over time, they will continue to live. … The rights of the Indigenous Peoples’, on the other hand, will be frozen and will not grow and adapt. If these rights are not written into the Agreement, they will no longer exist, they will be dead” (n.p.). It is precisely for this reason that Russell Diabo argues, “Canada’s Land Claims and Self-Government policies are far below the international standards set out in the Articles of the United Nations Declaration on the Rights of Indigenous Peoples” and refers to the process as a process of self-termination (4).
The Crap of the Algonquin Offer
Diabo, Russell. “Harper Launches Major First Nations Termination Plan: As Negotiating Tables Legitimize Canada’s Colonialism.” First Nations Strategic Bulletin 10.7-10. June-Oct. 2012. 15 Nov. 2012 <http://intercontinentalcry.org/wp-content/uploads/2012/11/FNSB-July-Oct-12.pdf>.
Olthuis, John A., H.W. Roger Townshend. “Is Canada’s Thumb on the Scales? An Analysis of Canada’s Comprehensive and Specific Claims Policies and Suggested Alternatives.” For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples. CD-ROM. Ottawa: Libraxus, 1997.
Union of British Columbia Indian Chiefs. “Certainty: Canada’s Struggle to Extinguish Aboriginal Title.” 23 Feb. 2013 <http://www.ubcic.bc.ca/Resources/certainty.htm#axzz2Nc7YY Zwe>.