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ALGONQUIN NATION SECRETARIAT

OVERVIEW OF COMPREHENSIVE CLAIMS IN CANADA


Presented By
Russell Diabo, Policy Advisor
July 2015

Overview of Presentation on
Comprehensive Claims
Background to
CCP/Aboriginal Title
Law vs. Policy
Update on CCP/Eyford
Report (AFN/AFNQL)
3 Classes of Aboriginal Title
First Nations
Aboriginal Title Alliance

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.

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.

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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] The claimant group bears the onus of
establishing Aboriginal title. The task is to
identify how pre-sovereignty rights and interests
can properly find expression in modern common
law terms. In asking whether Aboriginal title is
established, the general requirements are: (1)
"sufficient occupation" of the land claimed to
establish title at the time of assertion of
European sovereignty; (2) continuity of
occupation where present occupation is relied
on; and (3) exclusive historic occupation.

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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

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PM-AFN Meeting Jan. 11, 2013

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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.

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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.

AFN Rejection of Canadas


CCP Reform Process
AFN Resolution #30/2015:
THEREFORE BE IT RESOLVED that the Chiefs-in-Assembly:
1. Call on the federal government to dispense with processes that
aim to generate an optics of engagement, and rather,
commence a dialogue with all First Nations about how a
fundamental overhaul of the Comprehensive Claims Policy (CCP)
can be jointly carried out with three classes of Aboriginal title First
Nations First Nations that have entered in final comprehensive
claims agreements, First Nations that were or have been in
comprehensive claims negotiations, and First Nations that have
never agreed to negotiate under the federal CCP to develop a
new policy framework for implementing and addressing Treaty
rights, First Nations inherent rights, title and jurisdiction, the
Tsilhqotin Nation decision, as well as international legal norms,
including the United Nations Declaration on the Rights of
Indigenous Peoples. [Emphasis added]

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

66

Timiskaming-Wolf Lake-Eagle Village


Asserted Aboriginal Rights/Title Area

MITCHIKANIBIKOK INIK

Trilateral Agreement Territory:


Location
Trilateral Agreement
Territory
La Verendrye
Wildlife Reserve
Boundary

Rapid Lake

Community

Quebec

Traditional Management
Areas

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Algonquin Nation Secretariat


Issues

Federal officials have refused to act on evidence


presented in the SAR which demonstrates that
within the Algonquin Nation Aboriginal title is held
at the band/community level.
Canada has so far refused to engage seriously on
this issue despite best efforts, and in fact continues
to negotiate with the Algonquins of Ontario
(AOO) over lands that are used and occupied by
TFN-WLFN-EVFN and over which they assert
Aboriginal Title.
Canada continues to be in breach of Agreements
with ABL. Although Quebec is negotiating.

Aboriginal Title Alliance

Aboriginal Title Alliance


ATA is (so far) a network of 5 Aboriginal
Title First Nations: Neskonlith Indian Band
(in BC); Wolf Lake First Nation;
Timiskaming First Nation; Eagle Village
First Nation; Algonquins of Barriere Lake.
ATA made two UN interventions so far:
Report to UN Special Rapporteur, James
Anaya, on October 10, 2013; and
Shadow Report to UN Human Rights
Committee on Canada, on June 5, 2015.

CONCLUSION

Modernized Indian Act


Omnibus Bills: C-38 & C-45
First Nations Financial Transparency Act
Family Homes on Reserves and Matrimonial
Interests or Rights Act
Safe Drinking Water for First Nations Act
Indian Act Amendment and Replacement
Act
First Nations Election Act
First Nation Education Act (Pending)
First Nation Private Property Ownership Act
(Pending)

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Previous Effort at CCP Reform


Delgamuukw Implementation Strategic
Committee Six point strategy:
1. Public education,
2. Political negotiation/pre-litigation
strategy,
3. Litigation,
4. Policy development,
5. Direct action/exercise of Aboriginal
rights, and
6. International campaign

Conclusion
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Whats it going to take to bring


about a change in the CCP?
Crown engagement?
More litigation?
Lobbying?
Direct action?
International efforts?