April 20, 1998
Dear Ms. L,
Thank you for your letter of September 20, 1997 and enclosure concerning Native land claims in British Columbia [S.I.S.I.S. note: enclosure was an article regarding Bruce Clark's testimony at the Gustafsen trial]. I regret the delay in responding to your correspondence.
I do not share your view that the Crown title does not underlie unceded Indian land. It is certainly correct that, historically, Great Britain's policy with respect to its settled territories in Canada, and indeed elsewhere in the world, was based on a recognition of the continuing right of Aboriginal populations to live on and use their traditionally occupied lands unless it was ceded or otherwise taken up by the Crown for settlement. As the Supreme Court of Canada stated in the Sparrow case, however, "from the outset [there was] never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands was vested in the Crown". The recent decision of that court in Delgamuukw confirms this, when it states that "Aboriginal title is a burden on the Crown's underlying title."
As you know from my previous correspondence, I also dispute your contention that Canadian courts lack good will and intentions in their dealings with Aboriginal land claims. I do, however, wholeheartedly share you belief that solutions lie not in the courtroom but through good faith negotiations. I agree, too, that most Canadians -- particularly those well informed about the issues -- want to do the right thing by their Aboriginal fellow citizens.
The Government believes that the ongoing treaty negotiations in British Columbia are our best hope, and if active participation in the process is a meaningful indication, the majority of the province's Aboriginal population agrees. Treaty negotiations offer a means for getting beyond legalistic impasses and social discord to fair and pragmatic solutions, appropriate to the realities and goals of the First Nations. They do not require individual First nations to document or substantiate, in any way, their particular Aboriginal rights to lands and resources, including Aboriginal title; not does Canada purport to bestow such rights.
Canada's objective is to negotiate modern-day treaty settlement packages, including land and cash components, that allow First Nations to build sustainable economic opportunities and to take their rightful place as full-fledged members of Canadian society.
The government's recognition of First nations' inherent right of self-government, which in British Columbia will be negotiated and operationalized through the treaty process, flows from a proactive approach to Aboriginal issues that is not contingent upon judicial recognition or directives. We view the evolution of First Nation governance authorities and jurisdiction as an urgent and crucial building block for a renewed relationship with Aboriginal people.
I am not sure I understand your suggestion of an Indian province. If you mean the creation of a new province, carved out of British Columbia, I could not support such a physical disruption of established Aboriginal and non-Aboriginal communities. If you are suggesting that British Columbia be recognized as an Indian province, in much the same way as Quebec is viewed as a French Canadian province, I am not persuaded that the comparison is apt. Unlike the Francophones of Quebec, the First Nation population of B.C. represents many different cultures languages and traditions and (sic) view themselves as belonging to their individual First Nations.
With respect to your suggestion of a public inquiry into the Gustafsen Lake incident, all matters pertaining to law enforcement in British Columbia are responsibility of the provincial Attorney General. For this reason, it would not be appropriate for me to comment on the matter.
I appreciate the opportunity to respond to your letter and trust that my comments have been of assistance. I also appreciated receiving your good wishes for success in my portfolio as Minister of Indian Affairs and Northern Development.
Jane Stewart, P.C., M.P.