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OVERVIEW OF COMPREHENSIVE CLAIMS, SELFGOVERNMENT & LIBERAL PROMISES

Presented By
Russell Diabo, First Nations Policy Consultant
January 2016

Overview of Presentation on
Comprehensive Claims/SelfGovernment/Liberal Promises

Background to
CCP/Aboriginal Title
Law vs. Policy
Update on CCP/Eyford
Report (AFN/AFNQL)
UN Human Rights/UNDRIP
Liberal 2015 Promises

Background to
Comprehensive Claims
Policy/Aboriginal Title

Background to CCP
The first time the Supreme Court of Canada (SCC)
ruled on Aboriginal title in Canada was 42 years
ago (1973), in the Calder case.
The Nisgaa Tribe lost the Calder case.
The Court ruled in favor of Aboriginal title; but the
bench was split on whether Aboriginal title was
extinguished three for, and three against
The 7th ruled against the Nisgaa on a
technicality.

1973 Statement of Policy


The federal government responded to the
Calder decision by way of a statement of
policy, issued by the then Minister of Indian
Affairs, Jean Chretien.
The federal policy was to negotiate three types
of claims; 1) Comprehensive Claims, 2) Specific
Claims, and 3) Claims of another nature.

Evolution of CCP

Over the years, the 1973 statement of policy


has undergone a number of changes, the
biggest of which involved separating
Comprehensive Claims and Specific Claims into
discrete policies with additional definition.
The original statement on Comprehensive Claims
was amended in 1981 when Canada released
In All Fairness.

Grounds for a Specific Claim


A First Nation may submit a claim seeking
compensation for its losses based on any of the
following grounds:
a) a failure to fulfil a legal obligation of the
Crown* to provide lands or other assets under a
treaty or another agreement between the First
Nation and the Crown*;
b) a breach of a legal obligation of the Crown*
under the Indian Act or any other legislation
pertaining to Indians or lands reserved for Indians
of Canada or of a colony of Great Britain of
which at least some portion now forms part of
Canada;

Grounds for a Specific Claim


c) a breach of a legal obligation arising from the
Crowns* provision or non-provision of reserve lands,
including unilateral undertakings that give rise to a
fiduciary obligation at law, or its administration of reserve
lands, Indian moneys or other assets of the First Nation;
d) an illegal lease or disposition by the Crown* of reserve
lands;
e) a failure to provide adequate compensation for
reserve lands taken or damaged by the Crown* or any of
its agencies under legal authority; or
f) fraud by employees or agents of the Crown* in
connection with the acquisition, leasing or disposition of
reserve lands.

Specific Claims Over


$150 Million
Claims valued over $150 million
require the Minister to obtain a
discrete mandate prior to being
accepted for negotiation. Claims
over $150 million is not a new
class or category of claim. These
claims are still specific claims as
defined in the Specific Claims
Policy.

CONSTITUTION ACT 1982

Constitution Act 1982


On April 17, 1982, the Constitution Act
1982 became law.
Section 35 of the new constitution
recognizes and affirms the existing
aboriginal and treaty rights of
aboriginal peoples.
A series of First Ministers Conferences
were held in 1983, 1984, 1985 and
1987, to identify & define the scope
and content of sec. 35, but these
constitutional conferences ended in
failure.

1983 Amended
Section 35
35. (1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby
recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada"
includes the Indian, Inuit and Mtis peoples of
Canada.
(3) For greater certainty, in subsection (1) "treaty
rights" includes rights that now exist by way of land
claims agreements or may be so acquired.
(4) 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.

Legal Tests for Aboriginal


Rights & Title

Supreme Court of Canada:


The Judges

SCC Aboriginal Rights Test

R. v Van Der Peet (1996)


The right must involve an activity that
was a practice, tradition or custom
[that] was a central and significant
part of the [Aboriginal] societys
distinctive nature.
The activity must have existed prior
to contact with European settlers.
The activity, even if evolved into
modern forms, must be one that
continued to exist after 1982, when
the Constitution Act was passed.

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1997 Delgamuukw Decision

The Supreme Court concluded that Aboriginal title is


a real property right, which enjoys constitutional
recognition and protection via s.35 of the
Constitution Act, 1982.
It held that, where Aboriginal title exists, and where it
has been infringed, the Crown must justify its
infringement and reconcile its assertion of Crown title
with Aboriginal title. The Court identified two steps in
the justification test: (1) claimant proves infringement;
and (2) Crown proves justified with fiduciary duty.

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1997 Delgamuukw Decision

Justification Test consistent with fiduciary duty:


Consultation
Compensation - acknowledging the value
inherent in Aboriginal title lands and resources,
the Court indicated that diminished rights would
normally require valuable consideration.
Surrender/extinguishment of Aboriginal title - only
required when extreme measures are proposed
by the First Nation, ones which would sever the
connection between future generations and the
land.

19

1997 Delgamuukw Decision on


Aboriginal Title
In Delgamuukw, the Supreme Court of
Canada elaborated on nature of Aboriginal
title:
The right to exclusive use and occupation of
the land.
The right to choose to what uses the land
can be put, subject to the ultimate limit that
those uses cannot destroy the ability of the
land to sustain future generations of
Aboriginal peoples.
Lands held pursuant to Aboriginal title have
an inescapable economic component.

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1997 Delgamuukw Decision


(contd)

Reconciliation:
In short, the Supreme Court of Canada has
recognized that Aboriginal title is a real property
right, and that has a value. The Court has also
recognized that other governments must justify
any infringement of that property right, and
reconcile the assertion of Crown title with the
reality of Aboriginal title.

2004 - Haida at Supreme


Court of Canada

2014 - SCC Tsilhqotin


Decision on Aboriginal Title

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2014 Tsilhqotin Decision:


Aboriginal Title
Summary re: Proof of Aboriginal Title.
[50]Theclaimantgroupbearstheonusof
establishingAboriginaltitle.Thetaskisto
identifyhowpresovereigntyrightsandinterests
canproperlyfindexpressioninmoderncommon
lawterms.InaskingwhetherAboriginaltitleis
established,thegeneralrequirementsare:(1)
"sufficientoccupation"ofthelandclaimedto
establishtitleatthetimeofassertionof
Europeansovereignty;(2)continuityof
occupationwherepresentoccupationisrelied
on;and(3)exclusivehistoricoccupation.

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2014 Tsilhqotin Decision:


Aboriginal Title vs. Land Claims
Re-Affirms the principles & tests in
previous SCC decisions, including
Delgamuukw and Haida decisions.
Sets out a framework for
progressive recognition of
Aboriginal Title from assertion to
establishment.
Maintains Doctrine of Discovery in
finding that the radical or underlying
title to all the land acquired by
Crown.

FEDERAL INTERIM
CCP/SECTION 35 POLICY

26

PM-AFN Meeting Jan. 11, 2013

27

Canada-AFN CC-SOC Process

Two Senior Oversight Committees were


agreed to: 1) Historic Treaties and 2)
Comprehensive Claims.
AFN withdrew from Historic Treaty SOC.
Comprehensive Claims SOC was taken over
on AFN side by actively negotiating
representatives and excluded nonnegotiating representatives.
Both SOC processes ended in Dec. 2013. AFNSCA didnt formally adopt CC-SOC Report by
BC Vice-Chief.

28

2014 Federal Interim CCP &


Section 35 Policy

In September 2014, the federal Minister of


Aboriginal Affairs, Bernard Valcourt issued
an interim policy entitled Renewing the
Comprehensive Land Claims Policy:
Towards a Framework for Addressing
Section 35 Aboriginal Rights.
The interim policy is merely a restatement
of previous federal section 35 policies
regarding extinguishment of Aboriginal Title
and municipalization of Indian Bands.

FEDERAL CORE MANDATES


= KEY GOALS/CLAUSES
Getting consent to the
extinguishment (modification) of
Aboriginal Title;
Getting consent on the legal release
of Crown liability for past violations of
Aboriginal Title & Rights;
Getting consent to the elimination of
Indian Reserves by accepting lands
as private property (fee simple);
Getting consent to removing onreserve tax exemptions;

FEDERAL CORE MANDATES


= KEY GOALS/CLAUSES
Getting consent to respect existing
Private Lands/Third Party Interests (and
therefore alienation of Aboriginal Title
territory without compensation);
Getting consent to be assimilated into
existing federal & provincial laws;
Getting consent to application of
Canadian Charter of Rights & Freedoms
over governance & institutions in all
matters (individual vs. collective rights);
Getting consent to program funding on
a formula basis being linked to own
source revenue;

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Extinguishment of Aboriginal
Title Legal Techniques

certainty and finality;


modified and released;
and
Non-assertion of rights.

Cash & Land

Cash & Land: The


Comprehensive Claims
Formula: $25,600 per
head 9.3 Hectares (23
acres) per head

International Human
Rights Bodies/Standards

UN Human Rights Committee


Recommendations (1999)
The Committee
recommends that the
practice of extinguishing
inherent Aboriginal rights
be abandoned as
incompatible with article 1
of the Covenant.

UN Human Rights Committee


Recommendations (1999)
The Committee endorses
the recommendations of the
RCAP that policies which
violate Aboriginal treaty
obligations and
extinguishment, conversion or
giving up of Aboriginal rights
and title should on no account
be pursued by the State Party.

United Nations Declaration


on the Rights of Indigenous
Peoples (2007)

Selected Articles of UNDRIP


Article 3 Right to Self-Determination.
Article 10 No forced removal w/o FPIC.
Article 19 FPIC required before
legislation/administration measures.
Article 26 Rights to lands, territories, resources.
Article 27 Fair process jointly developed to
adjudicate rights to lands, territories, resources.
Article 32 FPIC required for and development
affecting lands, territories, resources.
Article 37 Rights from Treaties, agreements,
constructive arrangements.

Eyford Report on
Comprehensive Claims
Policy
Released April 2, 2015

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Eyford Report Ministerial


Special Representative on
Comprehensive Claims
Douglas Eyford

Douglas Eyford
appointed Ministerial
Special Representative
in Sept. 2014.
Eyford Engagement
process announced
Sept. 2014.
Engagement Report
with 47
Recommendations
released on April 2,
2015.

EYFORD REPORT
14 Comprehensive land
claims negotiations outside
of British Columbia.
8 Trans-boundary (NWT &
Nunavut) negotiation tables.
53 Negotiation tables in the
British Columbia treaty
process.

EYFORD REPORT
Most Recommendations
deal with First Nations in
negotiations or settlements
under the CCP.
Two Recommendations # 8
and #11 offer an alternative
to CCP:

Eyford Report
Alternative to CCP
#8 Canada should continue its
discussions with the Tsilhqot'in National
Government about a range of bilateral
or tripartite agreements outside the BC
treaty process.
#11 Canada should develop an
alternative approach for modern treaty
negotiations, one informed by the
recognition of existing Aboriginal rights,
including title, in areas where Aboriginal
title can be conclusively demonstrated.

Valcourts Generic Letter on


Eyford Report of April 2, 2015
I encourage you to forward your input on Mr. Eyford's
recommendations to article35-section35@aadnc-aandc.gc.ca
or through regular mail at:
Policy Development and Coordination Branch
Treaties and Aboriginal Government Sector
AANDC
10 Wellington. 8th Floor
GATINEAU QC K1A OH4
Aboriginal Affairs and Northern Development Canada officials
will also be available for one-on-one meetings. Requests for
such meetings can be made via the email address or through
regular mail.
The Government of Canada will carefully consider this
additional feedback, along with Mr. Eyford's recommendations,
before making any decisions on how best to move forward.

Develop a Federal Comprehensive


Land Claims Policy Based on the Full
Recognition of Aboriginal Title
AFN SCA Resolution #47/2015:
THEREFORE BE IT RESOLVED that the Chiefs-in-Assembly:

1. Call upon the Government of Canada, on a Nationto-Nation basis, in direct consultation with Aboriginal
Title First Nations, to undertake a process to replace
the federal Comprehensive Claims Policy (CCP) with a
policy that recognizes and respects Aboriginal Title
and Rights in accordance with Canada's
Constitutional obligations, the Tsilhqot'in Nation
decision, and consistent with the United Nations
Declaration on the Rights of Indigenous Peoples.

Develop a Federal Comprehensive


Land Claims Policy Based on the Full
Recognition of Aboriginal Title
2. Call on the Government of Canada to
forgive all outstanding loans incurred by First
Nations as a result of negotiating under the
federal CCP.
3. Call on the Government of Canada to
exclude all areas that are subject to
overlapping Aboriginal Title and Rights
claims from Comprehensive Land Claims
Agreement-in-Principle negotiations and to
assist, where possible, and when requested
by First Nations, the negotiation of shared
territory agreements between First Nations.

First Nations
with Modern Treaties

JBNQA

Post-JBNQA: Original 6
Actively Extinguishing
Groups in 1990
Nishga
Council for Yukon Indians
Dene-Metis
Inuit Tapirisat of Canada
Conseil Attikamek-Montagnais
Labador Inuit Association

Comprehensive Claims Settlements

First Nations Negotiating


Under CCP

Comprehensive Land Claims


& Self-Government Tables

Comprehensive Claims &


Self-Government
Negotiations

First Nations in
Negotiations Under CCP
BC Region

BCTC Negotiations

BCTC - 6 Stage Process to


Termination Agreements
STAGE ONE: Statement of Intent
STAGE TWO: Preparation for Negotiations
STAGE THREE: Negotiation of a
Framework Agreement
STAGE FOUR: Negotiation of an
Agreement-in-Principle
STAGE FIVE: Negotiation to Finalize a
Treaty
STAGE SIX: Treaty Implementation

First Nations Summit Created


by Federal & BC Legislation
SUMMIT - means the body that is established to
represent the First Nations in British Columbia
that agree to participate in the process
provided for in the Agreement to facilitate the
negotiation of treaties among first nations, Her
Majesty in right of Canada and Her Majesty in
right of British Columbia.
FIRST NATION - means an aboriginal governing
body, however organized and established by
aboriginal people within their traditional territory
in British Columbia, that has been mandated by
its constituents to enter into treaty negotiations
on their behalf with Her Majesty in right of
Canada and Her Majesty in right of British
Columbia;

First Nations Summit


Task Group

ED JOHN

CHERYL CASIMER

ROBERT PHILLIPS

CCP Negotiations Outside


of BC

Atlantic Region
Mi'kmaq of Prince Edward Island Comprehensive Land Claim with SelfGovernment - Exploratory Discussions.
Mi'kmaq of Nova Scotia - Comprehensive
Land Claim with Self-Government Agreement-in-Principle
Mi'kmaq & Maliseet of New Brunswick Comprehensive Land Claim with SelfGovernment - Framework Agreement.
NOTE: These tables are categorized as comprehensive land
claim negotiations because they have the dual focus of
bringing clarity to Aboriginal rights and implementing the
historic Peace and Friendship Treaties of 17601761. The
negotiated agreements will honour historic treaty rights.

Quebec & Labrador Region


Quebec Innu - Regroupement Petapan Inc. Comprehensive Land Claim with SelfGovernment - Final Agreement.
Atikamekw Nation Council - Comprehensive
Land Claim with Self-Government - Agreementin-Principle.
Mi'gmaq of Quebec - Comprehensive Land
Claim with Self-Government - Agreement-inPrinciple.
Maliseet of Viger First Nation - Comprehensive
Land Claim with Self-Government - Exploratory
Discussions.
Labrador Innu Nation Claim - Comprehensive
Land Claim with Self-Government - Final
Agreement.

NWT & Yukon Regions


Acho Dene Koe/Fort Liard Metis - Comprehensive
Land Claim with Self-Government - Agreement-inPrinciple.
Akaitcho Treaty 8 Dene - Comprehensive Land
Claim with Self-Government - Agreement-inPrinciple.
Dehcho First Nations - Comprehensive Land Claim
with Self-Government - Agreement-in-Principle.
K'atlodeeche First Nation - Comprehensive Land
Claim with Self-Government - Exploratory discussions.
Northwest Territory Mtis Nation - Comprehensive
Land Claim Agreement with Self-Government Agreement-in-Principle.
White River - Comprehensive Land Claim with SelfGovernment - Framework Agreement. (Yukon)

Algonquins of Ontario

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Algonquins of Ontario Example


of Whats Wrong with Policy

Essentially a land grab of the Eastern


Ontario/National Capital Region,
Parliament Hill, etc. by Crown govts.
Pikwakanagan (Golden Lake Band)
asserted land claim in 1983 to Canada and
again in 1985 to Ontario, without
agreement from other Algonquin Nation
bands.
Ontario accepted to negotiate first in 1991
then the federal government in 1992.

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Algonquins of Ontario (cont.)

Algonquins of Ontario is a policy fiction


created by Ontario and federal
governments.
The Algonquin Nation is not divided by the
Ottawa River, which was a major travel
route to and from Oka.
There are 10 federally recognized
Algonquin communities 9 in Quebec and 1
in Ontario, 8,000-10,000 People.

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Algonquins of Ontario (cont.)

The federal approach to beneficiaries in


the AOO claim gives standing to about
6,000-8,000 non-status individuals and 9
non-status groups who in many instances
will likely not meet the legal requirements
as title holders.
As a result the non-title holders are
provided with an opportunity to extinguish
Algonquin Title and Rights to territory over
which other Algonquin First Nations assert
Aboriginal Title & Rights.

AOO AIP Highlights


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Extinguishes Algonquin Aboriginal Title with no
compensation for prior infringement (modify &
release);
Non-Title Holders get section 35 status.
Replaces Golden Lake Reserve with private
property (Fee Simple);
Converts Pikwakanagan Indian Act Band Council
system into Municipal type government through a
self-government agreement & Pikwakanagan
gives up tax exemption/immunity & accepts
OSR/funding levels;
$18,553,381 Loans (to date) come off top of
settlement.

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Algonquin Nation Territory circa 1850-1867

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Algonquins of Ontario Settlement Area

Liberal Aboriginal
Platform
Commitments
2015 Election

Justin Trudeaus 2015


Commitments
During the election campaign, the platform
commitments (including the Liberal Party of Canadas
October 8, 2015, response to the BC First Nations
Leadership Council) stated that a Liberal government
will:
Immediately re-engage in a renewed nation-to-nation
process with Indigenous Peoples to make progress on
the issues most important to First Nations. . .
Prioritize developingin full partnership with First
Nationsa Federal Reconciliation Framework. This
framework will include mechanisms to advance and
strengthen self-government, address outstanding land
claims, and resolve grievances with both existing
historical treaties and modern land-claims
agreements.

Justin Trudeaus 2015


Commitments
Enact the 94 recommendations of the Truth and
Reconciliation Commission, including the adoption
of the United Nations Declaration on the Rights of
Indigenous Peoples.
Recognize and respect Aboriginal title and rights in
accordance with Canadas Constitutional
obligations, and further those enshrined in the UN
Declaration on the Rights of Indigenous Peoples.
Immediately lift the two percent cap on funding for
First Nations programs, and establish a new fiscal
relationship with First Nations one that provides
them with sufficient, predictable, and sustained
funding to support the priorities of First Nations
communities.

Justin Trudeaus 2015


Commitments
The Liberal Party of Canada has endorsed the
recommendations in the Eyford report in their entirety
and is committed to working in partnership with First
Nations to fully implement them. We will look to First
Nations leadership for guidance when making
decisions on where investments should be made.
Undertake a full review of regulatory law, policies, and
operational practices, in full partnership and
consultation with First Nations to ensure that the Crown is
fully executing its consultation, accommodation, and
consent obligations, including on resource
development and energy infrastructure project reviews
and assessments, in accordance with our constitutional
and international human rights obligations

CONCLUSION

Trudeaus 5 Point Plan


(Priorities)
Launch a national public inquiry into missing
and murdered indigenous women.
Make significant investments in First Nations
education.
Lift the two per cent cap on funding for First
Nations programs.
Implement all 94 recommendations from the
Truth and Reconciliation Commission.
Repeal all legislation unilaterally imposed on
indigenous people by the previous government.

Conclusion
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What will the Trudeau


government do about land
claims, historic Treaties and
self-government policies?
How will Trudeau government
interpret section 35 rights?