Federal Comprehensive

Claims Policy vs.

Recognition of Aboriginal
Title & Rights
ABORIGINAL PUBLIC LECTURE
CARLETON UNIVERSITY
FEBRUARY 5, 2015
BY RUSSELL DIABO

Chretin and Trudeau

1969 White Paper on Indian

Policy

1969 White Paper Proposals

Eliminate Indian Status.

Dissolve the Department of Indian Affairs within 5

years.

Abolish the Indian Act & remove section 91.24.

Convert reserve land to private property that can

be sold by the band or its members.

Transfer responsibility for Indian Affairs from the

federal government to the province and integrate
these services into those provided to other
Canadian citizens.

Provide funding for economic development.

Appoint a commissioner to address outstanding

land claims and gradually terminate existing
Treaties.

Frank Calder

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.

McKnight and Mulroney

Minister of Indian
Affairs

Prime Minister

10

1985 Coolican Report

Early in 1985, David Crombie, then Minister of

Indian Affairs and Northern Development, put
reform of the Comprehensive land claims policy
on his political agenda, he announced the
appointment of a five-person task force, headed
by Murray Coolican, to: "review all aspects of the
current comprehensive claims policy and make
recommendations as to future policy.

11

1985 Coolican Report (contd)

Recommended 4 main principles: (1) recognition

and affirmation of Aboriginal rights; (2) negotiation
of Aboriginal self-government; (3) shared Aboriginal
government responsibility for land and resources
management and (4) third party interests be treated
fairly.
Also recommends shift from cash and land deals,
and broadening of the land claims policy to permit
negotiation of economic, social, political and
cultural issues. It recommended that rather than
extinguish Aboriginal rights, land claims settlements
should affirm them.

12

1986 CCP

In response to the Coolican Report this policy

was changed again in 1986, and renamed the
Comprehensive Land Claims Policy(emphasis
added). The word Land was added to clarify
that from the federal governments perspective,
self-government was a separate issue to be
negotiated in accordance with the federal 1985
Community-Based Self-Government Policy.
The 1986 Comprehensive Land Claims Policy has
essentially remained in effect as the federal
negotiation position regarding Aboriginal title up
to today, except extinguishment has been
replaced with the notion of certainty, as well
as some changes to the process.

13

1990 Mulroneys Post-Oka

Four Pillars Policy

Accelerating settlement of Land claims;

Improving the economic and social conditions

on Reserves;

Strengthening the relationships between

Aboriginal Peoples and governments;

Examining the concerns of Canadas Aboriginal

Peoples in contemporary Canadian life.

14

RCAP Report
With regard to new treaties and agreements, the
Commission recommends that
2.2.6
The federal government establish a process for
making new treaties to replace the existing
comprehensive claims policy, based on the
following principles:
.

15

RCAP (contd)
(a) The blanket extinguishment of Aboriginal land
rights is not an option.
(b) Recognition of rights of governance is an
integral component of new treaty relationships.
(c) The treaty-making process is available to all
Aboriginal nations, including Indian, Inuit and
Mtis nations.
(d) Treaty nations that are parties to peace and
friendship treaties that did not purport to address
land and resource issues have access to the
treaty-making process to complete their treaty
relationships with the Crown

16

RCAP (contd)
In relation to all treaties, the Commission
recommends that
2.2.11
The following matters be open for discussion in
treaty implementation and renewal and treatymaking processes:

governance, including justice systems, long term

financial arrangements including fiscal transfers
and other intergovernmental arrangements;

17

RCAP (contd)

lands and resources;

economic rights, including treaty annuities and

hunting, fishing and trapping rights;

issues included in specific treaties (for example,

education, health and taxation); and

other issues relevant to treaty relationships

identified by either treaty party.

18

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.

19

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.

20

1997 Delgamuukw Decision (contd)

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.

21

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.

22

CCP inconsistencies with Delgamuukw

CCP says compensation is available, but
not part of the actual negotiations
because the Crown takes the position
that negotiations should be future looking
and not focus on compensation for past
infringements.
Yet, the April 28, 2000 Statement on
Certainty Principles speaks to reconciling
past infringements. Ironically,
compensation is payable to third parties.
To add insult to injury, First Nations are
asked to release the Crown from any
future claims to compensation.

23

CCP inconsistencies with Delgamuukw

The CCP alternatives to extinguishment, are
still forced and are not recognition and
affirmation i.e.,:

certainty and finality;

modified and released; and

Non-assertion of rights.

24

CCP inconsistencies with Delgamuukw

The federal treaty model/template

requires that settlement lands become
fee simple lands and no longer under the
jurisdiction of the federal government
pursuant to section 91(24) by providing
that upon the coming into force of the
treaty, there will be no more lands
reserved for the Indians within the
meaning of the Constitution Act, 1867.

25

CCP inconsistencies with Delgamuukw

Other inconsistencies with Principles of
Fiduciary Duty, Honour of the Crown and
Reconciliation:
Loan funding to negotiate, while
development on title lands is ongoing;
Forced elimination of tax exemption
/immunity;
OSR own source revenues affect program
and services funding levels

UN Declaration on the Rights of

Indigenous Peoples

26

Article 3 & 4 IP have right to self-determination

and self-government;
Article 10 IP have right not to be forcibly
removal from their lands;
Articles 25 &26 IP have rights to their traditional
lands and requires states to give recognition and
protection;
Article 27 & 28 States shall establish fair and
independent processes to adjudicate rights, and
IP have right to redress and compensation

27

Previous Efforts at CCP Reform

Coolican - 1985 Task Force on Comprehensive Claims

known as the Coolican Report met with limited success
but failed to obtain removal of extinguishment of
Aboriginal Title. The 1986 CCP merely changed the
wording from extinguishment to certainty. The intent
remained the same eliminate Aboriginal Title.

DISC - 1999-2000 AFN Delgamuukw Implementation

Strategic Committee (DISC). The federal response was
why change he CCP if First Nations are ready to
negotiate under the existing CCP.

28

Previous Efforts at CCP Reform

DISC 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

29

Previous Efforts at CCP Reform

AFN Recognition & Implementation of First Nation
Government Committee Confederacy
Resolution May 2004 in Regina:
Post- FNGA;
RIFNG Committee Report March 2005 identified
need for policy reform in 5 areas:
1. Comprehensive Claims Policy,
2. Treaty Implementation,
3. Inherent Right of Self-Government,
4. Specific Claims, and
5. Code of Conduct for Honour of the Crown

30

Previous Efforts at CCP Reform

RIFNG (contd)
Under PM Paul Martins Roundtable process
towards transformative reform;
Cabinet Retreat May 31, 2005
First Nation-Federal Crown Accord Political
Accord on RIFNG signed provided for
recognition and implementation approach in joint
action and cooperation on policy change in
areas identified in RIFNG Report
Change of government and Harper government
refused to honour RIFNG Accord

31

Previous Efforts at CCP Reform

Common Table: in 2007 process established under
BCTC to address common (policy) obstacles to
progress
6 key topics identified:
1. Recognition/certainty,
2. Constitutional status of lands,
3. Governance,
4. Co-Management of Traditional Territory,
5. Fiscal Relations, ie., OSR and Taxation, and
6. Fisheries

32

Previous Efforts at CCP Reform

Federal Response: mainly negative
1. Insist on certainty, no to recognition, stay with
existing models, but willing to explore wording;
2. Constitutional status of lands not willing to
change federal mandates;
3. Governance concurrent law model and
harmoniozation, not exclusive FN jurisdiction,
4. Co-management area and resource
specific solutions, third party interests need to
be balanced;
5. Fiscal relations, ie., OSR and taxation no
change
6. Fisheries no but will explore fish arrangements

33

Previous Efforts at CCP Reform

BC Response: less negative two avenues:
Re certainty, recognition, and
constitutional status of lands
complicated, more study required not
willing to change federal mandates;
2. Re governance, co-management,
fiscal relations, ie., revenue sharing and
taxation, fisheries address in specific
negotiations at individual tables
1.

Federal Results Based

Assessment Sept. 4, 2012
Assess acceptance of Harper governments
core negotiating Comprehensive
Claims/Self-Government mandates and
desired results, which are comprised of the
following key tenets:

Accept the extinguishment (modification)

of Aboriginal Title;

Accept the legal release of Crown liability

for past violations of Aboriginal Title &
Rights;

Accept elimination of Indian Reserves by

accepting lands in fee simple;

34

Federal Assessment (cont.)

Accept removing on-reserve tax

exemptions;

Respect existing Private Lands/Third

Party Interests (and therefore alienation
of Aboriginal Title territory without
compensation);

Accept (to be assimilated into) existing

federal & provincial orders of
government;

35

Federal Assessment (cont.)

Accept application of Canadian

Charter of Rights & Freedoms over
governance & institutions in all
matters;

Accept Funding on a formula basis

being linked to own source
revenue;

Other measures too, essentially

accepting to become Aboriginal
municipalities.

36

PM-AFN Meeting Jan. 11, 2013

37

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 by actively negotiating
representatives and excluded nonnegotiating representatives.

Both SOC processes ended in Dec.

2013.

38

2014 Tsilhqotin Decision

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.

39

2014 Tsilhqotin Decision

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.

40

2014 Federal Response to

Tsilhqotin

41

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 Consultation Process

42

Joe Oliver accepts

Doug Eyford Report

Douglas Eyford appointed

Ministerial Special
Representative in Sept.
2014.

Eyford consultation process

announced Sept. 2014.

Consultation Report
expected early in 2015.

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.

43

44

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.

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 Rrights to
territory over which other Algonquin
First Nations assert Aboriginal Title &
Rights.

45

AOO AIP Highlights

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 & OSR/funding levels;

$18,553,381 Loans (to date) come off top of

settlement.

46

47

Algonquin Nation Territory circa 1850-1867

48

Algonquins of Ontario Settlement Area

49

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

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.

52

53

Conclusion
Whats it going to take to bring about a change in
the CCP?
Crown engagement?
More litigation?
Lobbying?
Direct action?
International efforts?