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1. Land Claims
From Canadian History Portal - HCO
Introduction
Land claims are legal actions taken by a First Nation to reclaim land they argue was improperly taken by the Crown in the past. A land claim can also be based on a disagreement between a First Nation and the Crown over what rights a First Nation has over land. Land claims can be of various sizes. Some may only be a few acres. For example, a band might claim that 100 acres of its reserve was taken from them in the past without their agreement. Other land claims, such as those in British Columbia, can encompass thousands of square miles of land. Some claims encompass entire cities such as Vancouver or Toronto.
This chapter provides an overview of what land claims are, the historical basis to them, how they are resolved, and examples (both past and current) of land claims in Canada. Two of the most recent land claims in Canada, the Nunavut Agreement and the Nisga'a Land Agreement will also be examined. This chapter will also explain different types of claims, and how the land claims process works.
Giving an overview of land claims is difficult. Each land claim is unique, and reflects a specific history. Quite often other claims for compensation are part of a land claim. For example, a First Nation might claim that by losing land they also lost the ability to make a living from that land by trapping and fishing. They might seek compensation for that lost income.
Land claims, and legal questions about Aboriginal and treaty rights are also complicated. Numerous court decisions have changed how First Nations, government, courts, lawyers and others view land claims and questions about Aboriginal and treaty rights. New court decisions can often change how land claims are dealt with.
The Royal Proclamation of 1763
The Royal Proclamation of 1763 is a crucial document for Aboriginal land claims in Canada. Created by the British Crown, the Proclamation outlines how First Nations can sell land to the Crown (or government).
Under the terms of the proclamation no private individual or company can purchase land from a First Nation. That land must be sold to the Crown (today the federal government) by the First Nation. The Crown then sells it to person or company that wants that land. For example, imagine if a city bordered on a reserve. The city wants to purchase land from the reserve, and the reserve leaders are willing to sell the land to the city. The city cannot purchase that on its own. First, the federal government must negotiate the land sale with the First Nation. Once that land deal is worked out, the federal government then sells the land to the city (and gives the money from that sale to the band).
The proclamation also set out certain rules that must be followed in every land cession:
- A meeting must be held with all members of the nation to discuss the sale of the land
- First Nations' land can only be sold to the Crown
- Anyone purchasing land directly from a First Nation is committing an illegal act.
The Royal Proclamation forms the legal basis of Canada's treaty system, and the sale of reserve lands. Some people claim it is an "Indian Bill of Rights" because Britain recognized First Nations' land rights with the proclamation. This overstates the proclamation. It did state that First Nations have land rights, but it also states that First Nations are subjects of the British Crown. Native peoples never agreed to be subjects in 1763. In fact, the British Crown simply created the Royal Proclamation without consulting with any First Nations.
During the last two decades Canadian courts have, however, interpreted the proclamation as a legal recognition of Indian land rights. However, past courts did not see the proclamation the same way. For some time a question surrounded the meaning of the proclamation: Do First Nations have land rights because of the Royal Proclamation, or did the proclamation recognize rights that already existed? As will be seen later the British and Canadian courts, for some time, thought that the Proclamation created the rights, and could therefore take them away.
Treaty Rights and Aboriginal Rights to Land
Before examining court decisions and land claims it is important to understand the two types of rights First Nations base their claims on: treaty rights and Aboriginal rights. Both can be applied to land, but they can also be applied to other issues such as hunting, trapping and fishing (harvesting rights) and the right of a First Nation to continue a cultural practice.
Treaty rights refer to specific rights given to a First Nation in a treaty. First Nations can claim a treaty right to use land if that right is outlined in the treaty. For example, the Robinson Treaties state that First Nations in that part of Ontario can continue to hunt, trap and fish as they "had heretofore been in the habit of doing." Crown negotiators agreed to that condition in 1850. In return the Crown received the right to explore for minerals and timber in that territory, and to start settlements.
Treaties, as noted earlier, also created reserves. A First Nation may claim that a treaty right has been broken if their reserve was not surveyed properly, and they lost land as a result. Government misuse of reserve land can also form the basis of a claim.
An Aboriginal right, in relation to land, means that a First Nation has not entered into a treaty with the Canadian government for their land. They claim that they still own the land and all rights associated with it. The government must negotiate with them to gain access to their territory. Quite often the land in question is already occupied by people, towns and even cities. The city of Vancouver, for example, is part of a large land claim based on an Aboriginal right. Obviously the government cannot relocate the city of Vancouver, or offer full compensation for the cash value of the land (the federal and provincial governments do not have sufficient money for such an expense). Negotiations are held by both sides (including the province the claim is situated in) to determine fair compensation for the First Nation that lost this land
Land Claims, the Courts and the Government, 1880s to 1951
Many of the rights enjoyed by First Nations are now recognized because of Canada's courts. This does not mean that all court rulings have been favourable for First Nations. In general, however, Supreme Court rulings in the last thirty years have tended to support First Nations.
For many years, however, the government of Canada and the courts ignored Aboriginal rights and most Native concerns. In simplest terms this was because of racism in both Canadian courts and in government policy. Governments refused to take Native claims seriously for a number of reasons.[1] One of them was the government's policy of civilizing Native peoples. If the government's policy was to convince Native peoples to give up their traditional cultures it made no sense for the government to protect those cultures. Forcing First Nations to give up their land was one method the government used to acculturate them.
The other reason the government ignored Native claims was the courts. In 1885 the Judicial Committee of the Privy Council (JCPC) in England made an important ruling called the St. Catherine's Milling and Lumber Company vs. the Queen. It ruled that Natives only had a right to use their land based on their occupancy of it. Therefore, their ownership of land was not as strong as someone who purchased land. Native land rights were further weakened in 1888 when the JCPC issued another ruling that said Native rights existed only because the Crown allowed them to exist. This meant that the government could take these rights away when it wanted.
Attempts by Native peoples to change the government's outlook always failed. In some instances lawyers worked for free to help bands file land claims. These cases rarely succeeded. As noted in section two of the textbook the government of Canada eventually amended the Indian Act in 1927. It became illegal for a lawyer to accept any money or payment to help a band file a land claim against the federal government.
Land Claims and the Canadian Government, 1969
In 1969 the federal government issued its White Paper on Indian policy. As noted in section 2 of the textbook, the White Paper was not well received by First Nations. Consultations had been held with First Nations before the White Paper was created. None of these recommendations found their way into the government's new policy. Native leaders were angered at this. To them it seemed as if nothing had changed: First Nations can say what they want but the government will always ignore them.
Based on the White Paper it was clear the government had a very limited view of the treaties that existed between the government and First Nations. For example, the government only recognized the agreements that were written down. There was no appreciation of the verbal promises made between the government and Native peoples. It also advocated getting rid of reserves, abolishing the Indian Act, and getting rid of the concept of status Indians and treaty rights.
The White Paper did state the government would establish an Indian Claims Commission to "hear and determine Indian claims" to land. This commission was created in 1969. However, few First Nations made use of it because of their dislike of the White Paper, Canada's new Indian policy, and the government. One claim was brought before the Commission and resolved, but it had nothing to do with land. Treaty Seven bands received $250,000 because the government did not fulfill a treaty promise: supplying $2000 annually to provide the bands with ammunition for hunting.
1973: A Year of Change
As is often the case, changes in Aboriginal policy do not come from the government. Great change has come when First Nations use the courts to force governments to respect treaties. The first year that such transformations began to take place was 1973. In many ways it was the most important year in the history of land claims as three very important court decisions recognized First Nations rights in relation to land. The three cases were:
- Calder et.al. vs. the Attorney General of British Columbia
- Re. Paulette's Application to File a Caveat
- The injunction against the hydro-electric project in northern Quebec
Calder et.al. vs. the Attorney General of British Columbia
This was a case brought forward by the Nisga'a people of British Columbia. They were claiming an Aboriginal right to their traditional land. Specifically the Nisga'a said they never surrendered the land or their rights to anyone. Frank Calder, one of the plaintiffs in the case, provided a succinct summary of the Nisga'a position:
- What we don’t like about the government is their saying this: “We will give you this much land.” How can they give it when it is our own? We cannot understand it. They have never bought it from us or our forefathers. They have never fought or conquered our people and taken the land in that way, and yet they say now that they will give us so much land – our own land. … It has been ours for a thousand years.[2]
When the court ruled on the case it was a split decision. Of the seven judges, three dismissed the claim, three accepted the claim, and the seventh judge dismissed the case on a technicality. Those that dismissed the claim said that Aboriginal rights could be ended through government legislation. Simply put, as Canadian laws were applied to the land Aboriginal laws and rights were displaced until they no longer existed. However, they did rule that Aboriginal rights existed prior to this.
The three judges who supported the Nisga'a argued that Aboriginal rights existed independent of any government legislation. Aboriginal rights, they stated, existed until they were explicitly surrendered by treaty. Even if a treaty did exist in an area the burden of proof was on the government to prove that the treaty was meant to get rid of those rights. A government could not assume that an Aboriginal right was surrendered in a treaty unless that treaty specifically stated that the right was surrendered, and this was made clear to the First Nations.
Despite the split decision, the Calder ruling had an important impact on the government. It realized that the courts would not support the policy outlined in the White Paper. It changed its policy regarding land claims and treaty rights. It created policies and government agencies to begin negotiating with First Nations.
Re. Paulette's Application to File a Caveat
The last several decades of the twentieth century saw large resource companies based in southern portions of Canada take an ever increasing interest in the resource value of northern Canada. Regions of the country which, for thousands of years, had limited outside contact with Europeans (or non-Native Canadians), became increasingly inundated with resource exploration companies, surveyors, and government officials. Many of these First Nations had never signed any treaties with the Crown permitting this exploration.
One important resource in the far north is natural gas. Large companies began to explore the region for this resource. Transporting natural gas south requires a massive pipeline. Companies began to plan for the construction of such a pipeline.
Over a dozen First Nations in the Mackenzie Valley in the Northwest Territories sought a court injunction to stop the building of a pipeline through their territory. They argued they had an Aboriginal right to over one million square kilometers of land that the pipeline would run through. It could not be built until the Crown dealt with their rights.
In 1973 the Northwest Territories Supreme Court ruled in favour of the First Nations. The court agreed they had an "interest" in the land: a right to the land that gave them input into what happened in their territory. This decision forced the federal and territorial governments to negotiate a comprehensive land claims agreement with the First Nations of the region.
James Bay Cree, Inuit and Quebec
Northern regions of Canada’s provinces also began to attract the attention of southern based governments and resource companies. Some provinces, such as Ontario, already had treaties in their far north. Others, such as Quebec, had no treaties.
In Quebec, the Liberal government of Robert Bourassa wanted to develop several northern rivers, and create massive hydro-electric dams. This electricity, through transmission lines, would be transported to Quebec’s southern towns and cities (and even into the United States). Billions of dollars in investment would be spent building roads, and damming rivers. By damming these rivers over one million square kilometers of land would be flooded under many meters of water.
Occupying this land was the Cree and Inuit of northern Quebec. They realized the impact this development would have on their livelihood as hunters and trappers. At no point did the provincial government meet with them, or seek their input or advice regarding this project. In fact the provincial government did not think it needed the permission of the Cree or Inuit at all.
The James Bay Cree and Inuit in northern Quebec worked to stop the construction this massive hydro-electric project. Cree and Inuit communities were worried about the environmental impact of constructing the dam and flooding the land. They sought a court injunction against Hydro-Quebec and the Quebec government to stop construction. They claimed that the dam was being built on their traditional lands, and the flooding would affect their abilities to make a living.
As a result of this ruling an agreement was signed in 1975 between the First Nations, the Canadian government and the Quebec government. Called the James Bay and Northern Quebec Agreement (JBQNA) it allowed for construction of the hydro-electric dam, but the demands of the Cree and Inuit were addressed. In return for surrendering over 600,000 square kilometers of land the Cree and Inuit received the following:
- $150 million over 10 years from grants and royalties resulting from hydro-electric development (to be paid by the Quebec and Canadian governments)
- 25% of royalties from all hydro-electric profits for 50 years
- Control of all sites they occupy (and which were not flooded)
- Continued hunting, trapping and fishing rights
This agreement was the first comprehensive land claims agreement in Canada.
All of these rulings were very important, Calder perhaps the most important of all. It reflected a changing attitude in courts that Aboriginal rights could not be ignored by provincial governments or the federal government. These three decisions permanently changed how land claims would be handled in Canada.
Baker Lake v. Minister of Indian Affairs and Northern Development
Calder had an impact on court decisions soon after it was written. Baker Lake is a community in the Northwest Territories. In 1978 it applied for an injunction against the federal government to stop the issuing of mining leases in an area that is 78,000 square kilometers in size. They argued that mining would disrupt the annual caribou migration that they depended upon. The Canadian government stated that the Inuit of Baker Lake had lost their title to the land because Canadian law had been applied in the region for so long.
When the case appeared before the Federal Court of Canada the court decision drew upon the earlier Calder decision. Aboriginal rights exist, the court ruled, and can only be ended when a First Nation enters into a specific agreement with the federal government to surrender them.
Baker Lake also set down rules that First Nations must follow to prove that they have Aboriginal rights to an area. First Nations must prove the following:
- That they and their ancestors were part of an organized society.
- That they organized society occupied the specific territory over which they asserted the aboriginal title.
- That the occupation was to the exclusion of other organized societies.
- That the occupation was an established fact at the time sovereignty was asserted by England.[3]
The Constitutional Act, 1982
Before proceeding to other court decisions it is important to consider Canada's constitution. The general history of the 1982 repatriation of the constitution is provided in section two of the textbook. However, what the constitution means for First Nations is a complicated issue. Understanding how it came to be is certainly important. How a constitution is interpreted and put into effect, however, is perhaps more important.
In 1867 when the British North America Act was created, "Indians and lands reserved for Indians" was given to the federal government as part of its constitutional responsibility. However, there was no mention of Aboriginal or treaty rights in the 1867 constitution.
This changed in 1982. As a result of many years of negotiation Canada repatriated its constitution and made a number of changes to it. Section 35 recognized the existence of aboriginal and treaty rights:
- The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed
- In this Act "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
- For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
- Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.[4]
Subsections 1 and 2 are considered the most important parts of section 35. They entrenched (i.e.: made permanent) Aboriginal rights in the highest law in Canada. To ignore or openly contravene an Aboriginal right is now unconstitutional. No government, therefore, can engage in such activity.
However, the constitution did not define what aboriginal rights are. Are Aboriginal rights based only on traditional activities (i.e.: hunting, fishing, trapping, etc.)? Can these rights override existing federal or provincial laws even if those laws are meant to apply to all Canadians? The word "existing" in subsection 1 is also open to interpretation. Does it mean rights that still exist because a First Nation has not signed a treaty? Does it mean rights that a First Nation did not explicitly surrender in a treaty? Are these rights absolute. For example, would a First Nation be allowed to resume a ritual or custom that today's society would find unacceptable. It would be left to the courts to define what Aboriginal rights still exist, and what limits can be placed on them.
Guerin v. The Queen
Sometimes a land claim can be based on a few hundred or thousand acres. Guerin v. the Queen was such a claim. The Musqueam First Nation near Vancouver, British Columbia, surrendered part of their land to the federal government. A nearby golf course wanted to lease that land in order to expand their business. Money from the rental of the land would belong to the band.
A number of years after the surrender the Musqueam discovered that the land was being rented for less than could be obtained. It brought a claim against the Crown arguing that it broke its fiduciary obligations to their people. "Fiduciary" means "trust-like." This means that the Crown must always act in the best interests of First Nations. By not leasing the land for as much as could be obtained the Crown did not act in the best interests of the Musqueam.
Eventually the case was brought before the Supreme Court of Canada. In 1985 the court ruled in the Musqueam's favour, and awarded it $10 million in damages. The court ruled that the historic relationship between the Crown and First Nations is one of trust. Under the terms of the Royal Proclamation of 1763 the Crown established rules that it would act in the best interests of First Nations when obtaining and selling their land.
While Guerin only applies to reserve lands it is a very important decision. It means that land purchased by the Crown from an Indian reserve must be used in the best interests of the First Nation. Once the Guerin ruling was delivered other bands across Canada filed claims stating that the federal government/Crown obtained reserve land and did not use it in the best interests of their community.
Delgamuukw v. British Columbia
- See: 1991 - Delgamuukw v. British Columbia Judgment
British Columbia is a source of many court cases about Aboriginal rights because so little of the province is covered by treaty. Delgamuukw v. British Columbia is one of the most important decisions to date about Aboriginal rights.
The Gitskan and Wet'suwet'en First Nation filed a claim in 1983 to 59,000 square kilometers of land. They argued their ancestors never signed a treaty to surrender this land. Furthermore, they claimed the right to administer and control all the natural resources within the claim area because those resources still belonged to them.
They lost their first hearing before the British Columbia Supreme Court in 1984. It ruled that legislation passed by British Columbia before it became part of Canada in 1871 was meant to establish the authority of the colony over all people living within it. It was a decision that ran contrary to the three justices in the 1973 Calder decision. The BC Supreme Court only recognized the Gitskan and Wet'suwet'en First Nations’ right to use unoccupied Crown land (i.e.: government land not owned by another private individual or company).
The judge refused to consider the oral history presented by the Gitskan and Wet'suwet'en regarding their use of the land. He considered oral history to be hearsay, and not admissible as evidence in court. Hearsay is evidence based on what a witness heard someone else say, not what they personally experienced.[5]
This ruling was appealed to the British Columbia Court of Appeal. The five appeal court judges overturned the earlier ruling, and stated that that the Gitskan and Wet'suwet'en First Nation still possessed their Aboriginal rights. They said that Canada's constitution gave existing Aboriginal rights protection, and the Gitskan and Wet'suwet'en's rights still existed because they had not signed a treaty to surrender them. Furthermore, they disagreed that legislation before 1871 was meant to get rid of Aboriginal rights. After 1871, only the Canadian government could deal with First Nations to obtain land.
However, the Court of Appeal did not outline exactly what rights the Gitskan and Wet'suwet'en First Nation had. Their decision was appealed to the Supreme Court of Canada.
In 1997 the Supreme Court issued its ruling (it took 9 years to get to this point). It is a very complicated ruling with many implications for Aboriginal rights and land title.
First, the court ruled that the Gitskan and Wet'suwet'en First Nation's claim could not be decided without a new trial. It stated that the original judge in 1984 was wrong to dismiss oral histories from elders about their traditional occupation of the land. This evidence had to be presented so a proper ruling could be made on the claim. Oral history, they stated, was not the same as hearsay because oral histories are a specific form of remembering particular to First Nations. Oral history, they ruled, must be considered alongside all other evidence when considering land claims and Aboriginal rights. By recognizing the importance of oral histories in land claims the Supreme Court of Canada established a rule that will have a profound impact on future land claims.
The court also made a number of statements about Aboriginal title to land. This makes Delgamuukw an important case for land claims. The points it made were
- Aboriginal title is a right to the land itself: This means that Aboriginal title to land is equal to any other form of land title
- Title allows them to use the land for other than traditional purposes: Aboriginal title is not limited just to hunting, fishing and traditional use of resources. It allows First Nations to engage in mining, development, etc. This makes this ruling different from the Baker Lake ruling. In Baker Lake the court limited Aboriginal use of land to traditional use.
- Aboriginal title is a communal right: Decisions about land have to be made by the entire community and not one or a few individuals.
- Aboriginal title is sui generic: This is a legal term meaning unique. Aboriginal title to land is based on a particular First Nations traditional use and perception of their land rights. This must be taken into consideration by courts and government.
- Aboriginal title has limits: A First Nation can use the land for contemporary purposes (i.e.: allowing mining, logging, building businesses etc.), but cannot use the land in such a way that it prevents their traditional use of the land. For example, a First Nation could not allow so much logging to take place that hunting is no longer possible (if their traditional culture is based on hunting).
- Only the federal government can purchase Aboriginal land: This continues a practice dating back to 1763.
- Aboriginal title is protected under the constitution: The Constitution Act, 1982, in section 35, protects Aboriginal title to land.
The following chart helps to explain in brief what this means by comparing it to ordinary land ownership in Canada (i.e.: if you own a house or property):
| Question | Ordinary Land Ownership | Aboriginal Title |
|---|---|---|
| Who can own the land? | An individual or group | A common group: there are no individual rights to aboriginal title |
| Can the owner sell the land? | Yes | May be surrendered only to the federal Crown [government] |
| What limits are there on land use? | Zoning, and other provincial and municipal laws | Use must not impair traditional use of the land for future generations |
| What laws protect the land? | Common law and provincial legislation | Common law and the Canadian constitution |
Even though the Supreme Court sent the case back to be retried, its statements about Aboriginal title will have an impact on how governments and First Nations approach land claims negotiations.
The Claims Process
History and General Background
As noted earlier various reasons prevented land claims from being brought forward in the past. When the law against First Nations hiring lawyers for land claims was lifted in 1951 very little happened. The federal government considered starting a claims process as early as 1961, but nothing was accomplished. The Calder decision changed things. The federal government created an Office of Indian Claims to hear any and all land claims brought to it by First Nations. A process was put in place to analyze the claims, decide if they were based in fact, and then forward them to the Department of Indian Affairs and Northern Development for negotiation.
Claims require up to 20 years to resolve. Starting a land claim, and seeing it through to completion requires considerable research and negotiation. Negotiations are not only between a specific First Nation and the federal government. If the claim is based in Saskatchewan, for example, than the provincial government will also be involved. If the claim filed is a specific claim for a smaller piece of land that land may be occupied by private landowners, or it could encompass municipal land. There are many people and levels of government with an interest in how claims are resolved.
Claims also require a large amount of historical research. First Nations hire researchers (i.e. historians, anthropologists, lawyers, etc.) to work in archives, gather oral histories, and study what has already been written about their people's history to prove their claim. Such research can take months or in some cases years to complete. Once a claim is accepted by the federal government it hires its own researchers to analyze the report filed by the First Nation. Government researchers will duplicate the First Nation's research, and look at the same documents used to support their claim.
Specific Claims Branch
Specific Claims Branch (SCB) is part of the Department of Indian Affairs and Northern Development, a government department with its headquarters in Gatineau, Quebec. Specific Claims was created in 1973 in response to Calder. It has undergone changes in how it conducts business. For example, pre-Confederation treaties (i.e.: treaties created before 1867) now fall within its mandate. First Nations seeking compensation less than $500,000 can have their claims "fast-tracked." Since June 30, 2005, the Government of Canada has settled 268 specific claims. It is currently negotiating another 116.
First Nations submit their claim to SCB. Government researchers analyze the report and claim, and track down the same documents used by the First Nation to support its claim. SCB and the Department of Justice then decide if the claim has enough support to proceed. If it does it moves into the negotiation stage. If not, the claim is rejected. First Nations that believe their claim has been unfairly rejected can appeal to the Indian Claims Commission.
First Nations are not always happy about how long the process can take. In the document section of this chapter is a media release from the Union of British Columbia Indian Chiefs. It outlines the frustration of the Okanagan Band, and the 11 years it has taken to get their claim reviewed only to have it rejected.
The Indian Claims Commission
The Indian Claims Commission (ICC) was created in 1991. It is independent of the federal government which means that it is not directed politically to reach certain conclusions about land claims. The Assembly of First Nations, a national Aboriginal group that represents the interests of First Nations across Canada, pressured the government to make the ICC independent.
The ICC was created to "hold public inquiries into specific claims made by First Nations that have been rejected by the Government of Canada. The Commission also provides mediation to help First Nations and government, at any stage of negotiations, reach claim settlements."[7] Only specific claims are handled by the ICC. Comprehensive claims are dealt with by other government agencies.
Provincial Commissions
While each province has a government agency dedicated to dealing with First Nations only two will be considered here: the Ontario Secretariat for Aboriginal Affairs (OSAA) and the British Columbia Treaty Commission. Provincial agencies are important in the negotiating process. Province's have jurisdiction over natural resources within their boundaries and numerous other areas that are of importance to First Nations.
Furthermore, provinces are often part of a claim because of their historic relationship with First Nations. Reaching a settlement, therefore, must take the province into account.
Ontario's experience with land claims is very different from British Columbia's. Most of Ontario is covered by treaties. Therefore, most claims brought forward in Ontario are specific claims to land due to either: a reserve that was not surveyed properly, or reserve land that was inappropriately taken at some point in the past or lost due to some other event (such as flooding due to dam construction). The Canadian government is often involved because it has constitutional jurisdiction over Native peoples, and any matter dealing with Native land must be dealt with through the Canadian government.
Ontario Secretariat for Aboriginal Affairs
As with the Specific Claims Branch, OSAA reviews all claims to determine if Ontario has any legal obligations to the First Nation. The OSAA website outlines four steps in the claims process:
- Submission of Claim: The First Nation submits its claim with supporting reports and documents.
- Pre-Negotiation: OSAA reviews the claim, determines if more research is needed, and conducts a legal review. The province then decides if it will accept the claim.
- Negotiation: If accepted the province, the First Nation and the federal government start negotiations. Public consultations might be held if the claim affects other people. Further research is done to determine the economic value of the claim.
- Settlement and Implementation: If an agreement is reached all parties sign the agreement at an official signing ceremony.
British Columbia Treaty Commission
The British Columbia Treaty Commission (BCTC) is in a very different situation. British Columbia is only partially covered by three treaties: the Douglas Treaties, Treaty Eight, and the Nisga'a Treaty. The rest of British Columbia is under negotiation. In 1992 BC established the BCTC to deal with these negotiations. The BCTC grew out of the Report of the British Columbia Claims Task Force. This commission was created to investigate First Nations claims in British Columbia, and how the provincial government should deal with these claims. First Nations, the BC and Canadian governments signed the report and accepted its recommendation that a Treaty Commission be created.
The BCTC operates based on the report's recommendations. In short, the BCTC is to negotiate treaties with First Nations (with the participation of the federal government) to establish "a new relationship based on mutual trust, respect and understanding."[8] To help negotiations First Nations would be funded by the government to pursue their claims, and fund the research necessary to support a claim.
Currently there are 57 First Nations in British Columbia at various stages of the claims process. There are 6 stages to the claims process. Put simply these stages are:
- A First Nation files a "statement of intent to negotiate a treaty."
- Preparation for treaty negotiations, and first meeting between all parties
- Establishing a framework for negotiations (i.e.: who will chair meetings, how often meetings are held, record keeping matters, setting up public information sessions, etc.)
- Negotiating an agreement in principle (i.e.: a basic outline of the main points and what all the parties agree to)
- Negotiating a final treaty. The agreement in principle is finalized, and all parties agree that they have reached an arrangement that they are happy with.
- Implementing and finalizing the treaty.[9]
Currently there are 6 First Nations in British Columbia who are in stage 5 of the negotiation process, and 41 First Nations in stage 4. The remaining nations are in stages 3 and 2.
Recent Comprehensive Settlements
Some comprehensive settlements, such as the JBNQA, have already been discussed in this chapter. Other settlements have been reached since then. Unlike early Indian treaties, modern settlements are long (several hundred pages or more) and very detailed. They reflect the desire of both First Nations and governments to explain, as clearly as possible, what they are agreeing to. This helps (hopefully) to prevent future misunderstandings. Several comprehensive agreements are outlined here to show how different these settlements are from much earlier treaties as regards the negotiations, the complexity of the issues, and the nature of the agreements.
Council of Yukon Indians
In 1973 the federal government accepted the claim of the Yukon First Nations to land and resources in the Yukon Territory. Over the course of twenty years an agreement was created in 1993. The length of time required shows how complicated modern settlements are.
Under the terms of the agreement the Yukon agreement provides a number of benefits and rights for Yukon First Nations.
- They are no longer subject to the Indian Act
- Each First Nation will have authority over resource harvesting and business regulations in their territory
- Each First Nation can pass laws dealing with language, education, culture, health and welfare services, and licensing (to raise revenue)
In addition the land claim area was created with certain conditions. Over 41,000 square kilometers of land are designated "Category A" lands. This means they are subject to the control of the Yukon First Nations. Another large portion of land is designated "Category B". This means it is subject to the federal government, but First Nations have input. Another important difference is that in Category A lands, First Nations have both surface and subsurface rights. Therefore, they have the right to benefit from logging, hunting etc (which occurs on the surface of the land) and mining (which occurs below the surface). The Yukon First Nations also received $243 million over 15 years.
Dene/Métis Claim
This claim has a long history, dating back to 1921 when Treaty Number 11 was created. In 1973, with the court ruling in the Paulette case (see above) the First Nations of Treaty 11 claimed that their aboriginal rights to the land had not been surrendered by the treaty. The court decision and the claims of the Dene/Métis led to negotiations with the government of Canada in 1976. In 1990 a draft agreement was created. It was brought before the Dene/Métis Annual General Meeting, but was rejected by the delegates. Under the proposed agreement the First Nations would surrender their Aboriginal rights. Few of the delegates agreed to this. Negotiations resumed with the government of Canada, and a new draft agreement was created in 1991. Over 90% of the Gwich'in people voted in a referendum on the agreement. Of these people, 94% accepted the new agreement.
Passed by the Parliament of Canada in 1992, the Gwich'in Land Claim Settlement Act provides the Gwich'in with ownership of 22,329 square kilometers of land. Within this land base they have with subsurface rights over 6158 square kilometers. Furthermore, a percentage of all resource royalties collected by the government of the Northwest Territories in the western portion of the territory. In addition they were given $75 million over 15 years.
Under the Claim Settlement Act the Gwich'in Tribal Council (GTC) will participate in management of all renewable resources and land in the settlement area. Co-management Boards are to be set up under the legislation. In return for this the Gwich'in surrendered their Aboriginal rights to other lands in Canada.
This settlement has not resolved all issues for the GTC. Under the agreement the government of Canada is not locked into providing a set amount of funding every year for the resource management boards. Studies and plans therefore have not yet been completed because the government will not offer stable funding. The settlement also does not address First Nations concerns about self-government. Both the Gwich'in and the Inuvialuit people to the north began negotiating with the federal government on this issue in 1996
On April 17, 2003, an agreement in principle was reached between all parties on self-government. It outlines areas of shared and sole responsibility for First Nations in areas of health, education, welfare, social services, adoption and local government.
The Nisga'a Treaty
Signed in 1998 the Nisga'a Treaty represents the first comprehensive land claims settlement in British Columbia. Approximately 100 claims are outstanding in British Columbia, and the Nisga'a Treaty is seen as a model to base future agreements on. It has been a long process. The first claim brought forward by the Nisga'a was over 110 years ago. Examining some of the details of the Nisga'a Treaty shows how much compromise was offered to reach this deal.
First, the original claim area was 24,000 square kilometers. The final agreement set aside approximately 2000 square kilometers for the Nisga'a in the Nass River Valley of northern British Columbia. The Nisga'a established their own government with powers similar to a municipal level of government. A Nisga'a court was also established. Some land is held communally by the Nisga'a, but other land can be held as private property and sold. Surface and subsurface rights in the area will be retained by the Nisga'a, and they retain a portion of the salmon resource in the Nass River and local wildlife. In addition they will receive $200 million over 15 years, and another $21.5 million in additional benefits.
The Nisga'a also agreed to give up certain things. For example, within 12 years of signing the treaty the Nisga'a will lose their tax exempt status for provincial and federal taxes including income tax (currently a First Nations person who receives a salary or payment from their Band does not have to pay income tax on that income). Over time the Nisga'a government will assume more of the financial burden of providing services to their people.
Timeline
- 1998, August 4 - The Nisga'a Treaty is signed by the Nisga'a Nation, the Government of British Columbia and the Government of Canada.
- 1999, December 13 - Treaty - House of Commons votes 217-48 in favour of a bill giving the Nisga'a people in northwest BC the right to self-government; Nisga'a will be awarded 2000 sq km of land and $253 million in return for agreement to pay taxes and relinquish future claims.
- April 13, 2000 - Aboriginal - The Nisga'a Treaty receives Royal Assent as Parliament passes the Nisga'a Final Agreement Act, which gives legal effect to the Treaty. The Nisga’a people will receive $200 million over a 15-year period, plus self-government, a 300,000 cubic decameter water reserve and control of natural resources in nearly 2,000 square kilometres of land in the Nass River Valley.
Conclusion
Land claims are complex. Understanding them requires someone to understand not only the history of a particular First Nation and treaty (if one exists), but one must also understand numerous court rulings and legislation. There is also a very political element to land claims. The lengthy nature of the negotiation process is very frustrating for First Nations. Often they argue that the government (provincial or federal) is stalling negotiations. At other times governments will enter into agreements over forestry or mining, and a First Nation will argue that their rights were not considered in these agreements. Land claims are not an issue that will be resolved in the near future. Understanding their origin, however, and what has affected them helps us to appreciate how the process works.
Notes
- ↑ Sid Harring, White Man’s Law: Native People in Nineteenth Century Canadian Jurisprudence (Toronto: University of Toronto Press, 1998).
- ↑ Cited in Olive Dickason, Canada’s First Nations: A History of Founding Peoples from Earliest Times. 3rd edition (Don Mills: Oxford University Press, 2002): 332.
- ↑ Cited in David W. Elliott, "Aboriginal Title." Aboriginal Peoples and the Law: Indian, Métis and Inuit Rights in Canada. Bradford W. Morse ed. Revised Edition (Ottawa: Carleton University Press, 1991): 93.
- ↑ Department of Justice, Canada. "Constitution Acts, 1867 to 1982
- ↑ Royal Canadian Mounted Police, “Rules of Evidence.” http://www.rcmp-learning.org/iim/ecdi1021.htm#appexd1. Accessed February 23, 2006.
- ↑ B.C. Treaty Commission, "A Lay Person's Guide to Delgamuukw."
- ↑ Indian Claims Commission, "The Claims Process
- ↑ British Columbia Treaty Commission, "Mission Statement
- ↑ British Columbia Treaty Commission, "Six Stages: Policies and Procedures
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