Comprehensive Claims Policy vs. Aboriginal Title & Rights Oct 9 13

7/27/2019 Comprehensive Claims Policy vs. Aboriginal Title & Rights Oct 9 13

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Federal Comprehensive

Claims Policy vs.Recognition of Aboriginal

Title & Rights

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TH

ANNUAL INDIGENOUS BAR ASSOCIATION

CONFERENCE

OCTOBER 9, 2013PRESENTATION BY DAVID NAHWEGAHBOW & RUSSELL DIABO


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1973 Statement of Policy

The federal government responded to theCalder decision by way of a statement of

policy, issued by the then Minister of IndianAffairs, Jean Chretien.

The federal policy was to negotiate three typesof claims; 1) Comprehensive Claims, 2) SpecificClaims, and 3) Claims of another nature.

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Evolution of CCP

Over the years, the 1973 statement of policyhas undergone a number of changes, the

biggest of which involved separatingComprehensive Claims and Specific Claims intodiscrete policies with additional definition.

The original statement on Comprehensive Claimswas amended in 1981 when Canada releasedIn All Fairness.

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1985 Coolican Report

Early in 1985, David Crombie, then Minister ofIndian Affairs and Northern Development, put

reform of the Comprehensive land claims policyon his political agenda, he announced theappointment of a five-person task force, headedby Murray Coolican, to: "review all aspects of thecurrent comprehensive claims policy and makerecommendations as to future policy.

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1985 Coolican Report (contd) Recommended 4 main principles: (1) recognition

and affirmation of Aboriginal rights; (2) negotiationof Aboriginal self-government; (3) shared Aboriginal

+ government responsibility for land and resourcesmanagement and (4) third party interests be treatedfairly.

Also recommends shift from cash and land deals,

and broadening of the land claims policy to permitnegotiation of economic, social, political andcultural issues. It recommended that rather thanextinguish Aboriginal rights, land claims settlementsshould affirm them.

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1986 CCP In response to the Coolican Report this policy

was changed again in 1986, and renamed theComprehensive Land Claims Policy(emphasisadded). The word Land was added to clarify

that from the federal governments perspective,self-government was a separate issue to benegotiated in accordance with the federal 1985Community-Based Self-Government Policy.

The 1986 Comprehensive Land Claims Policy hasessentially remained in effect as the federalnegotiation position regarding Aboriginal title upto today, except extinguishment has beenreplaced with the notion of certainty, as wellas some changes to the process.

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1990 Mulroneys Post-OkaFour 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.

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RCAP Report

With regard to new treaties and agreements, theCommission recommends that

2.2.6The federal government establish a process for

making new treaties to replace the existingcomprehensive claims policy, based on thefollowing principles:

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RCAP (contd)

(a) The blanket extinguishment of Aboriginal landrights is not an option.

(b) Recognition of rights of governance is anintegral component of new treaty relationships.

(c) The treaty-making process is available to allAboriginal nations, including Indian, Inuit andMtis nations.

(d) Treaty nations that are parties to peace andfriendship treaties that did not purport to addressland and resource issues have access to thetreaty-making process to complete their treaty

relationships with the Crown

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RCAP (contd)In relation to all treaties, the Commission

recommends that

2.2.11The following matters be open for discussion in

treaty implementation and renewal and treaty-making processes:

governance, including justice systems, long termfinancial arrangements including fiscal transfersand other intergovernmental arrangements;

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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 relationshipsidentified by either treaty party.

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1997 Delgamuukw Decision The Supreme Court concluded that Aboriginal title is

a real property right, which enjoys constitutionalrecognition and protection via s.35 of the

Constitution Act, 1982.

It held that, where Aboriginal title exists, and where ithas been infringed, the Crown must justify itsinfringement and reconcile its assertion of Crown title

with Aboriginal title. The Court identified two steps inthe justification test: (1) claimant proves infringement;and (2) Crown proves justified with fiduciary duty.

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1997 Delgamuukw DecisionJustification Testconsistent with fiduciary duty:

Consultation

Compensation - acknowledging the value inherent in

Aboriginal title lands and resources, the Courtindicated that diminished rights would normallyrequire valuable consideration.

Surrender/extinguishment of Aboriginal title - onlyrequired when extreme measures are proposed by

the First Nation, ones which would sever theconnection between future generations and theland.

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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 cannotdestroy the ability of the land to sustain futuregenerations of Aboriginal peoples.

Lands held pursuant to Aboriginal title have aninescapable 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 propertyright, and that has a value. The Court has alsorecognized that other governments must justifyany infringement of that property right, andreconcile the assertion of Crown title with thereality of Aboriginal title.

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CCP inconsistencies with Delgamuukw CCP says compensation is available, but not

part of the actual negotiations because theCrown takes the position that negotiationsshould be future looking and not focus oncompensation for past infringements.

Yet, the April 28, 2000 Statement on CertaintyPrinciples speaks to reconciling pastinfringements. Ironically, compensation ispayable to third parties. To add insult toinjury, First Nations are asked to release theCrown from any future claims tocompensation.

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CCP inconsistencies with DelgamuukwThe 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.

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CCP inconsistencies with Delgamuukw

Other inconsistencies with Principles ofFiduciary Duty, Honour of the Crown and

Reconciliation: Loan funding to negotiate, while

development on title lands is ongoing;

Forced elimination of tax exemption/immunity;

OSRown source revenues affect programand services funding levels

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UN Declaration on the Rights of

Indigenous Peoples Article 3 & 4IP have right to self-determination

and self-government;

Article 10IP have right not to be forcibly

removal from their lands; Articles 25 &26IP have rights to their traditional

lands and requires states to give recognition andprotection;

Article 27 & 28States shall establish fair and

independent processes to adjudicate rights, andIP have right to redress and compensation

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Previous Efforts at CCP Reform

Coolican - 1985 Task Force on Comprehensive Claimsknown as the Coolican Report met with limited success

but failed to obtain removal of extinguishment ofAboriginal Title. The 1986 CCP merely changed thewording from extinguishment to certainty. The intentremained the same eliminate Aboriginal Title.

DISC - 1999-2000 AFN Delgamuukw Implementation

Strategic Committee (DISC). The federal response waswhy change he CCP if First Nations are ready tonegotiate under the existing CCP.

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DISCSix 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

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RIFGN CommitteeConfederacy Resolution May 2004 inRegina:

Post- FNGA;

RIFNG Committee Report March 2005identified needfor 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

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Previous Efforts at CCP ReformRIFNG (contd)

Under PM Paul Martins Roundtable process towards transformative reform;

Cabinet RetreatMay 31, 2005 First Nation-Federal Crown Accord Political

Accord on RIFNG signedprovided forrecognition and implementation approach in jointaction and cooperation on policy change in

areas identified in RIFNG Report Change of government and Harper government

refused to honour RIFNG Accord

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Common Table: in 2007 process established underBCTC to address common (policy) obstacles toprogress

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

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Federal Response: mainly negative1. Insist on certainty, no to recognition, stay with

existing models, but willing to explore;

2. Constitutional status of landsnot willing tochange federal mandates;3. Governanceconcurrent law model and

harmoniozation, not exclusive FN jurisdiction,4. Co-managementarea and resource specific

solutions, third party interests need to bebalanced;

5. Fiscal relations, ie., OSR and taxationno change6. Fisheriesno but will explore fish arrangements

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BC Response: less negativetwo avenues:

1. Re certainty, recognition, and constitutionalstatus of landscomplicated, more studyrequired not willing to change federalmandates;

2. Re governance, co-management, fiscalrelations, ie., revenue sharing and taxation,fisheriesaddress in specific negotiations atindividual tables

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Federal Results Based

AssessmentSept. 4, 2013

Assess acceptance of Harper governments corenegotiating Comprehensive Claims/Self-

Government mandates and desired results, whichare comprised of the following key tenets:

Accept the extinguishment (modification) ofAboriginal Title;

Accept the legal release of Crown liability forpast violations of Aboriginal Title & Rights;

Accept elimination of Indian Reserves byaccepting lands in fee simple;

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Federal Assessment (cont.)

Accept removing on-reserve taxexemptions;

Respect existing Private Lands/ThirdParty Interests (and therefore alienationof Aboriginal Title territory withoutcompensation);

Accept (to be assimilated into) existingfederal & provincial orders ofgovernment;

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Federal Assessment (cont.)

Accept application of CanadianCharter of Rights & Freedoms overgovernance &

institutions in all matters;

Accept Funding on a formula basis

being linked to own source revenue;Other measures too, essentiallyaccepting to become Aboriginalmunicipalities.

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Conclusion

Whats it going to take to bring about a change inthe CCP?

Crown engagement? More litigation?

Lobbying?

Direct action?

International efforts?

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Comprehensive Claims Policy vs. Aboriginal Title & Rights Oct 9 13

Documents

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