Resolving Aboriginal Land Claims: Canadian Experience

ResolvingAboriginal ClaimsAboriginal Claims

A Practical Guide to Canadian Experiences

Resolving

Published under the authority of theMinister of Indian Affairs and Northern DevelopmentOttawa, 2003www.ainc-inac.gc.ca1-800-567-9604TTY only 1-866-553-0554

QS-7051-000-EE-A1Catalogue No. R2-283/2003EISBN 0-662-35239-4

© Minister of Public Works and Government Services CanadaServices gouvernementaux Canada

Cette publication peut aussi être obtenueen français sous le titre : Résolutions des réclamations Autochtones : un guide pratique des expériences canadiennes

Table of Contents

1. Introduction and Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. Types of Aboriginal Claims Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3. Comprehensive Land Claims Process . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4. Issues to be Negotiated within the Comprehensive Land Claims Process . . . . . . . . . . . . . . . . . . . . . . . . . . 24

5. The Land Selection Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

6. Self-Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Annexes: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Profile of Canada’s Aboriginal Peoples. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Glossary of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

RESOLVING ABORIGINAL CLAIMS

Introduction

This paper on Aboriginal rights and titleresponds to widespread international

interest in the Canadian context. Its primaryobjective is to share the Government ofCanada’s domestic experience of these issueswith other nations interested in initiating andimplementing similar processes with the goalof resolving outstanding Aboriginal claims tolands, resources and self-government.

This is also a contribution to the understand-ing of the international community regardingthese issues in the context of the UnitedNations General Assembly’s Decade of theWorld’s Indigenous People (1995-2004), theThird Summit of the Americas and its Plan ofAction, the creation of the UN DraftDeclaration on the Rights of IndigenousPeoples, and the creation of the OAS DraftAmerican Declaration on the Rights ofIndigenous Peoples.

Finally, this guide is a response to the growinginterest of Aboriginal organizations and communities in building closer links amongthemselves internationally, in order to get toknow more about each other, share their com-mon concerns, problems and conflicts, and ini-tiate a broader search for strategic policies totackle these issues.

RESOLVING ABORIGINAL CLAIMS 1

1. Introduction and Context

"Canada is a test case for a grand notion - the notion that dissimilar peoples can share lands, resources,power and dreams while respecting and sustaining their differences. The story of Canada is the story ofmany such peoples, trying and failing and trying again to live together in peace and harmony."

Royal Commission on Aboriginal Peoples, 1996

• 1763 - Royal Proclamation marked British control over all of NorthAmerica east of the Mississippi. Decreed that, from this date forward,only the British Crown could deal with Indians on land issues

• 1764-1923 - a series of treaties were signed with Aboriginal groups.Some of the pre-confederation and all of the post-confederationtreaties addressed reserve lands, hunting, fishing, trapping rights,annuities and other benefits

• 1867 - the Dominion of Canada proclaimed the Constitution Act,1867. This set out the legislative authorities of the federal Parliamentand provincial legislatures. Section 91 (24) gave the Parliament ofCanada authority over "Indians, and lands reserved for the Indians"

• 1876 - Indian Act first enacted. Under this legislation, the CanadianGovernment regulated almost every aspect of the daily life ofAboriginal peoples

• 1939 - the Supreme Court of Canada ruled that the term "Indians" insection 91 (24) of the Constitution Act, 1867 includes the Inuit

• 1969 - the federal White Paper called for a repeal of the Indian Actand an end to special status for Aboriginal peoples. Due to protests,it was withdrawn in 1971

• 1969 - Calder case launched, concerning Aboriginal title claimed by theNisga’a in British Columbia. The 1973 Supreme Court of Canada deci-sion led the federal government to develop policies for land claims

• 1982 - Constitution Act provided that "existing Aboriginal and treatyrights" are recognized and affirmed (section 35(1)) and that "theAboriginal peoples of Canada" include the Indian, Inuit and Métispeoples of Canada (section 35(2))

• 1983 - Section 35 amended to provide for Constitutional recognitionof rights acquired through both existing and future land claim agree-ments. Rights were guaranteed equally to male and female persons,and there was a commitment to consult Aboriginal peoples prior tocertain constitutional changes affecting them

• 1995 - Inherent Right Policy recognized the inherent right ofAboriginal peoples to self-government as an Aboriginal right withinsection 35 of the Constitution Act, 1982.

Landmark Events in the Development of the Concept of Aboriginal Rights and Title in Canada

This document translates complex legal, histori-cal and political issues into more easily under-stood text. While all attempts at accuracy havebeen made, errors or omissions may haveoccurred. The views expressed in this paper donot necessarily represent the official policies orlegal positions of the Government of Canada.

Brief History of Government-Aboriginal Relations and Evolutionof Federal Policy on AboriginalPeoplesAboriginal peoples have occupied the lands ofwhat is known today as Canada since timeimmemorial, and have many individual soci-eties with their own heritages, languages, cul-tures, spiritual beliefs and contemporary issues.For instance, in Canada there are more than600 First Nation communities (a term thatcame into common usage in the 1970s toreplace the word "Indian," which many peoplefound offensive), and the Inuit and Métis, that comprise 52 nations or cultural groups, 11 major linguistic families and more than 50Aboriginal languages.

Historically, Aboriginal communities onCanada’s east coast, in the central plains andaround the Mackenzie and Yukon River basinswere mainly nomadic hunters and gatherers,while the more sedentary communities on thePacific coast harvested salmon, shellfish andwhales from the sea. The Inuit of Canada’sNorth hunted and fished through the Arcticbarrens while Aboriginal communities aroundthe Great Lakes were mainly sedentary andagricultural.

Today, there are approximately 2,300 reservesacross the country, comprising more than28,000 square kilometres (about the size of

Belgium). In addition, between 1975 and2002, over 800,000 square kilometres of landhave come under the direct control ofAboriginal groups through the comprehensiveclaims process. The Specific Claims programhas enabled First Nations to acquire 861,683square kilometres of land. Some reserves (origi-nally rural) have gradually been surrounded bymajor cities such as Montreal, Vancouver, andCalgary. Around 60 per cent of Status Indianslive on reserves. According to the 1996national census, almost 50 per cent ofCanada’s Aboriginal population (Status andnon-Status Indians, Inuit and Métis) now livesin an urban centre.

The Métis began as the offspring of three dis-tinct peoples: Aboriginal, and English orFrench settlers. By the beginning of the nine-teenth century, significant numbers of Métispeoples were living across the Prairieprovinces. Their mixed heritage, combinedwith their experience as intermediariesbetween the factions competing for trade andterritory, resulted in their emergence as dis-tinct peoples with their own culture, institu-tions and ways of life.

Today, Aboriginal peoples seek a quality of lifethat other Canadians take for granted. TheAboriginal population is experiencing a babyboom and there remain unresolved grievancesrooted in the past dealing with residentialschools, land claims and the treaty relation-ship. Aboriginal people are more likely to berecipients of social welfare, to be unemployed,to be incarcerated, to live in poverty, to faceincreased health risks and to commit suicidethan other people in Canada.

Together with Aboriginal peoples, theGovernment of Canada is transforming the fed-eral approach to indigenous issues from an

RESOLVING ABORIGINAL CLAIMS2

earlier focus on "rights" and "grievances," intoan integrated approach to quality of life,encompassing economic development, humancapital, community infrastructure and gover-nance. Comprehensive land claims negotiationsremain an integral component of this agendathrough the provision of an increased land baseto Aboriginal groups within the process.

Government-Aboriginal relations can bedivided into four historical periods:

• Contact/Cooperation (1600-1800)• Decline/Assimilation (1800-1946)• Aboriginal Revival (1946-1969)• Reconciliation and Renewal

(1969-Present).

Contact/Cooperation (1600-1800)In the 18th Century, the French and Britishwere competing for control of lands in NorthAmerica. The two colonial powers formedstrategic alliances with Aboriginal groups tohelp them advance their respective colonialinterests in the continent. For example, inwhat is now New Brunswick and Nova Scotia,the British made a series of "Peace andFriendship" treaties with the Mi’Kmaq andMaliseet tribes between 1725 and 1779.

By the early 1760s, the British had establishedthemselves as the dominant colonial power inNorth America. The Royal Proclamation of1763 prohibited the purchase of Aboriginallands by any party other than the Crown. TheCrown could purchase land from anAboriginal group that had agreed to the sale ata public meeting of the group. The RoyalProclamation set the stage for the negotiationof legally binding agreements with Aboriginalpeoples on a wide variety of issues.

Decline/Assimilation (1800-1946)Several treaties were signed after the RoyalProclamation and before Confederation in1867. These include the Upper Canada Treaties(1764-1862, Ontario) and the Douglas Treaties(1850-1854, British Columbia). Under thesetreaties, the Aboriginal groups surrenderedinterests in land in exchange for other benefitsthat could include reserves, annuities or othertypes of payment, and certain rights to huntand fish.

In 1867, Ontario and Quebec were joined withNova Scotia and New Brunswick to form theDominion of Canada. Today, Canada is notonly an independent democracy, but also afederal state, with 10 provinces and three territories.

The national Parliament has power "to makelaws for the peace, order and good governmentof Canada." Exclusive national powers includethe following: taxation; defence; regulation oftrade and commerce; "the public debt and prop-erty" (this enables Canada to make grants for awide range of purposes to individuals or toprovinces); the post office; the census and sta-tistics; defence; the fisheries; international orinterprovincial "works and undertakings"(including railways); and Indians and landsreserved for the Indians. The provincial legisla-tures have power over direct taxation in theprovince, natural resources, health and educa-tion, municipal institutions, local works andundertakings, and other issues of local concern.

Between 1871 and 1921, the Crown enteredinto treaties with various Aboriginal groups thatenabled the Canadian government to activelypursue agriculture, settlement and resourcedevelopment of the Canadian West and North.Because they are numbered 1 to 11, thesetreaties are often referred to as the "NumberedTreaties." The Numbered Treaties cover


Northern Ontario, Manitoba, Saskatchewan,Alberta, and portions of the Yukon, theNorthwest Territories and British Columbia.

Under the Numbered Treaties, the Aboriginalgroups who occupied these territories cededvast tracts of land to the Crown. In exchange,the treaties provided for reserve lands andother benefits such as agricultural equipmentand livestock, annuities, ammunition, gratu-ities, clothing and certain rights to hunt andfish on unoccupied Crown lands. The Crownalso made promises regarding the mainte-nance of schools on reserves, or the provisionof teachers or educational assistance to theAboriginal groups. Treaty No. 6 also includedthe promise of a medicine chest.

For most Aboriginal peoples, however, settlingin a permanent community was a new experi-ence. The substantial reduction of their tradi-tional hunting and fishing grounds made themhighly dependent on non-traditional sources oflivelihood and federal government support.

In 1876, the Government of Canada passed theIndian Act, which regulates aspects of daily lifeof Status Indians living on reserve. The act hasbeen amended several times, most recently in1985. Among its many provisions, the actestablishes the structure for band governance,addresses education of Status Indians, andrequires the Minister of Indian Affairs andNorthern Development to manage certain mon-eys belonging to First Nations, to manageIndian lands, and to approve or disallow FirstNations bylaws.

During the first half of the 20th century, govern-ments made several successive attempts toassimilate Aboriginal peoples into mainstreamsociety. Many indigenous children wereremoved from their families and sent to

"residential schools" located away from theircommunities. These children were often forbid-den to speak their own languages or to practicetheir cultures. While attempts at assimilationwere ultimately unsuccessful, they helped con-tribute to the political, cultural and economicdecline of many Aboriginal communities.

Aboriginal Revival (1946-1969)At the end of World War II, a greater sensitivityto the culture and heritage of indigenous peo-ples began to develop in Canada. At the sametime, a new generation of Aboriginal leadersmade great efforts to attain a fair and just con-sideration of their rights, and urged the govern-ment to make changes in Aboriginal policy.

In 1946, the Canadian Parliament established aspecial joint committee of the Senate and theHouse of Commons to consider a review of theIndian Act. Aboriginal leaders addressing thecommittee spoke out against the government’spolicy of assimilation and the power exercisedby government officials over their daily affairs.The Indian Act was thoroughly reviewed in1951 and some amendments were made.

Canada also began to implement policies toimprove the living conditions of Aboriginal peo-ples. These included the recognition of the dis-tinctiveness and richness of Aboriginal cultures,the dismantling of assimilationist policies, pro-grams and supporting infrastructure (e.g., resi-dential schools), the granting to Aboriginal peo-ple of citizenship and the right to vote in federaland provincial elections (in 1960, Aboriginalpeople were granted the federal vote - by 1968all provinces had followed suit), and enhancedeconomic support. Partially as a result of thesepolicies, improvements were made in thehealth, education and economic status ofAboriginal people by the mid 1960s.


In 1969, the Government of Canada releasedthe "Statement of the Government of Canadaon Indian Policy" (the "White Paper"), whichproposed the elimination of the Departmentof Indian Affairs and the Indian Act, and thetransfer of responsibility for Indian peoples tothe provinces. Objections by Aboriginal lead-ers that this policy would ignore treaty andother rights led to the withdrawal of theWhite Paper by the federal government.

Reconciliation and Renewal (1969-Present)In 1969, the Nisga’a First Nation commencedlitigation in which they claimed they hadlegal title to their traditional territory. TheBritish Columbia Supreme Court rejected theNisga’a arguments and ruled that noAboriginal title existed. The Nisga’a took theircase to the Supreme Court of Canada, which,while ruling against the Nisga’a on a techni-cality, ruled that the Nisga’a had a pre-existingtitle to the land based on their longtime occu-pation, possession and use of the traditionalterritory. The Court was evenly split on theissue of whether the Nisga’a title to the landhad been extinguished when British Columbiajoined the Canadian Confederation.

Following this case, the federal governmentopened the Native Claims Office in 1973 tonegotiate with First Nations in areas of thecountry not covered by historic treaties, aswell as to resolve, through negotiation, dis-putes related to treaty entitlements and relatedlawful obligations.

Existing Aboriginal and treaty rights were recog-nized and affirmed in the Constitution Act,1982. Prior to 1982, the Crown could unilater-ally extinguish aboriginal rights if it did so withplain and clear intent. Since 1982, however,


• 1973 - Supreme Court of Canada divided in the Calder case on theissue of whether the Aboriginal title of the Nisga’a had survived untilmodern times. All judges recognized that Aboriginal title existed as aconcept in Canadian common law, though they differed on the testnecessary for its extinguishment

• 1973 - Government responded to Calder with the creation of an Officeof Native Claims

• 1975 - James Bay and Northern Quebec Agreement (JBNQA) was thefirst comprehensive land claim settlement. Federal and Quebec gov-ernments, Hydro-Quebec, Grand Council of the Crees (of Quebec) andNorthern Quebec Inuit Association were party to this agreement

• 1982 - existing Aboriginal and treaty rights were recognized andaffirmed in the Constitution Act, 1982

• 1986 - significant amendments to the federal comprehensive landclaims policy were announced, following an extensive period of con-sultation with Aboriginal groups. Key changes to the policy includedthe development of alternatives to blanket extinguishment ofAboriginal rights

• 1990 - lifting of the limit of six comprehensive land claims undernegotiation at any one time

• 1990 - in the Sparrow case, the Supreme Court held that the plaintiffs,the Musqueam Indian Band, had an Aboriginal right to fish for food,social and ceremonial purposes. The Court also found there is a fiduci-ary relationship between the Crown and Aboriginal peoples and section35 of the Constitution Act, 1982 must be interpreted consistent withthis. The Court placed a high burden on the Crown to justify anyinfringement of rights protected by section 35

• 1993 - establishment of the British Columbia Treaty Commission(BCTC), an independent tripartite commission with the mandate to oversee the negotiation of claims in British Columbia

• 1998 - in the Delgamuukw case, the Supreme Court made general pronouncements on the scope and content of Aboriginal title

• 1999 - in the Marshall case, the Supreme Court ruled that there is animplied term in the Treaties of 1760-61 granting Mi’kmaq signatories aright to engage in traditional resource harvesting activities, including forpurpose of sale, to the extent required to provide for a moderate liveli-hood. The Court clarified principles of evidence for interpretation of Indianhistorical treaties. In a clarification of its first decision, the Court stressedthat the Crown can accommodate the historical involvement by non-Aboriginal persons in the resource industry in regulating a treaty right

• 2000 - the Nisga’a Final Agreement was concluded, marking the firsttime in Canadian history that both the land claim settlement and self-government arrangements were negotiated at the same time and givenconstitutional protection in a treaty

• 1975-2004 - sixteen comprehensive claims have been settled inCanada since the announcement of the Government of Canada’sclaims policy in 1973, the most recent being those of the eight YukonFirst Nations, the Nisga’a Agreement, and the Tlicho Agreement.

Key Developments on Aboriginal Land and Resource Issues

the Crown no longer has that power, althoughthe Crown can still infringe upon existingAboriginal rights if it satisfies the justificationtest established by the Courts.

Following an extensive period of consultationwith Aboriginal groups, in December 1986 sig-nificant amendments to the federal compre-hensive land claims policy were announced,including:

• openness to the development of alterna-tives to blanket extinguishment ofAboriginal rights

• provision for the inclusion in settlementagreements of offshore wildlife harvestingrights, resource-revenue sharing,Aboriginal participation in environmentaldecision-making, and self-governmentarrangements

• provision for the establishment of interimmeasures to protect Aboriginal interestsduring negotiations

• the negotiation of implementation plansto accompany final agreements.

In 1990, the government announced that a six-claim limit on the number of comprehensiveland claims negotiations the government wouldundertake at any one time had been eliminat-ed, and the process was to be expanded.

Over the past 30 years, the Canadian courts havebegun to define Aboriginal rights. For example,in 1990 the Supreme Court of Canada conclud-ed in the Sparrow decision that the MusqueamIndian Band had an existing Aboriginal right tofish subject to justifiable limits such as conserva-tion and public safety. This is just one exampleof an Aboriginal right. So far, Canadian law hasconfirmed that Aboriginal rights:

• exist in law• may range from rights not intimately tied

to a specific area of land, to site-specificrights, to Aboriginal title, which is a rightto exclusive use and occupancy of land

• are site, fact and group-specific• are not absolute and may be justifiably

infringed by the Crown.

A number of Supreme Court of Canada deci-sions have also made reference to Aboriginaltitle. The most important of these is the 1997Delgamuukw decision, in which the court saidthat:

• Aboriginal title is a communal right• Aboriginal title, like other types of

Aboriginal rights, is protected under section 35 of the Constitution Act, 1982

• Aboriginal title lands can only be surren-dered to the federal Crown

• Aboriginal title lands must not be put to ause which is irreconcilable with the natureof the group's attachment to the land

• in order for the Crown to justify aninfringement of Aboriginal title, it mustdemonstrate a compelling and substantivelegislative objective, it must have consult-ed with the Aboriginal group prior to act-ing and, in some cases, compensation maybe required.

Due to evidentiary problems with the case, theSupreme Court of Canada found that a newtrial was required to determine whether theplaintiffs enjoy the claimed Aboriginal title.The Court also strongly urged the litigants toturn to the negotiation process as the pre-ferred means of resolving these issues.

Despite such findings, the Supreme Court hasremained silent, for the most part, on the actualcontent of Aboriginal rights, and the extent and


nature of these rights has been the subject ofconsiderable debate. The Court has indicatedon numerous occasions that negotiations arethe best way to resolve issues associated withAboriginal rights and title.

In the past, the provinces were not involved innegotiations with First Nations because theGovernment of Canada generally negotiatedtreaties in advance of settler populations andthe creation of provincial governments.Today, however, most of the lands andresources which are the subject of comprehen-sive land claims negotiations are under provin-cial jurisdiction. Moreover, by establishingcertainty of title to land and resources, claimsettlements benefit the provinces. Canadatherefore takes the position that provincesmust participate in negotiations and con-tribute to the costs of the settlement.

Although land and resources in Canada’s terri-tories (the Yukon, the Northwest Territories,and Nunavut), are under federal jurisdiction,territorial governments fully participate inland claim settlement negotiations and in theimplementation of resulting Final Agreements.

In 1995, the Government of Canada adoptedpolicy which recognized the inherent right ofself-government as an existing Aboriginal rightunder section 35 of the Constitution Act, 1982.The Inherent Right Policy is based on theassumption that the Aboriginal peoples ofCanada have the right to govern themselves inrelation to matters that are internal to theircommunities, integral to their unique cultures,identities, traditions, languages and institu-tions, and with respect to their special rela-tionship to their land and their resources. Thesubject matters over which Aboriginal groupsexercise self-government powers are set out innegotiated agreements.

In April 1991, Canada created a RoyalCommission on Aboriginal Peoples (RCAP) toexamine Aboriginal issues. In response to the1996 RCAP report, the Government of Canadaannounced Gathering Strength: Canada’sAboriginal Action Plan in January 1998. Thisplan reaffirmed that treaties will continue tobe central to future government-Aboriginalrelations.

In addition to the programs outlined above,the Government of Canada has also recog-nized the need to modernize the Indian Act,and legislation has been introduced to providemore effective tools for accountability andcommunity governance.

The Government’s vision for the future ofAboriginal peoples is enabling them to achieve thesame standard of living, quality of life and oppor-tunity equal to those of other Canadians and tolive self-reliantly while all Canadians are enrichedby Aboriginal cultures and are committed to thefair sharing of the potential of their nation.(‘Building a New Partnership’, Department ofForeign Affairs and International Trade paper,1995.)


There are three types of Aboriginal landclaim processes in Canada:

• Comprehensive land claims are basedon the concept of continuing Aboriginalrights and title which have not been dealtwith by treaty or other legal means

• Specific claims are claims arising fromalleged non-fulfilment of Indian treatiesand other lawful obligations, or theimproper administration of lands andother assets under the Indian Act or formalagreements

• Other claims are claims which do notmeet the strict acceptance criteria of theabove two programs, but which nonethe-less have merit. A number of these claimshave been accepted by Canada as requiringresolution through negotiation.

In addition to the claims, the federal govern-ment is also open to the negotiation of self-government agreements with Aboriginalgroups, sometimes as part of a comprehensiveland claim.

COMPREHENSIVE LAND CLAIMSOverview: the primary purpose of compre-hensive land claims settlements is to concludeagreements with Aboriginal peoples that willresolve the legal ambiguities associated withthe common law concept of Aboriginal rights.The objective is to negotiate modern treatieswhich provide certainty and clarity of rights toownership and use of lands and resources for


2. Types of Aboriginal Claims Processes

"There are a number of compelling advantages to the negotiation process, as the Federal Government seesit. The format permits Natives not only to express their opinions and state their grievances, but it furtherallows them to participate in the formulation of the terms of their own settlement. When a settlement isreached, after mutual agreement between the parties, a claim then can be dealt with once and for all.Once this is achieved, the claim is nullified."

"In All Fairness: A Native Claims Policy," Indian and Northern Affairs Canada paper, Ottawa, 1981.

In order for its comprehensive land claims submission to be accepted, anAboriginal group must demonstrate all of the following:

• the Aboriginal group is and was an organized society

• the organized group has occupied a specific territory over which itasserts Aboriginal title from time immemorial, and the traditional useand occupancy of the territory must have been sufficient to be anestablished fact at the time of assertion of sovereignty by Europeannations

• the occupation of the territory by the Aboriginal party was largely tothe exclusion of other organized societies

• the Aboriginal group can demonstrate some continuing current useand occupancy of the land for traditional purposes

• the group’s Aboriginal title and rights to resource use have not beendealt with by treaty

• Aboriginal title has not been eliminated by other lawful means.

In British Columbia, Aboriginal groups do not need to provide the sameevidence of prior occupation as in the rest of the country.

Federal Policy for the Settlement ofAboriginal Land Claims

all parties. The process is intended to result inagreement on the rights Aboriginal peoples willhave in the future with respect to lands andresources. Through the negotiations, theAboriginal party secures a clearly defined pack-age of rights and benefits codified in constitu-tionally protected settlement agreements.

Comprehensive land claim agreements definea wide range of rights, responsibilities andbenefits, including ownership of lands, fish-eries and wildlife harvesting rights, participa-tion in land and resource management, finan-cial compensation, resource revenue sharingand economic development projects.Settlements are intended to ensure that theinterests of Aboriginal groups in resource man-agement and environmental protection arerecognized, and that claimants share in thebenefits of development.

Since 1973, 16 comprehensive land claimagreements have been signed in Canada cover-ing about 40 percent of its sovereign territory.At present, the Government of Canada hasprovided over 70 mandates to negotiate com-prehensive land claims settlements withAboriginal groups and provincial and territori-al governments. Negotiation processes are cur-rently underway in five Canadian provinces(Newfoundland and Labrador, Nova Scotia,Quebec, Ontario and British Columbia) andthree territories (Nunavut, NorthwestTerritories and Yukon). The establishment ofcomprehensive claims processes is being con-sidered in the provinces of New Brunswickand Prince Edward Island. Approximately 43percent of the Aboriginal population currentlyinvolved in these processes resides in BritishColumbia where 53 claims have been acceptedfor negotiation and where Agreement-in-Principle negotiations are proceeding at over40 negotiation tables.

Claims Costs and BenefitsThe key to understanding the economic bene-fits of settling comprehensive land claims lies inunderstanding the negative impact that unset-tled claims have on local and regional develop-ment. For instance, in the early 1990's an inde-pendent consulting firm estimated the cost toBritish Columbia of not settling land claimswas $1 billion in lost investment and 1,500 jobsa year in the mining and forestry sectors alone.On the other hand, it is projected that the eco-nomic stability generated by settling compre-hensive land claims in BC will produce anincrease in provincial gross domestic product of$2-2.5 million for every $1 million of govern-ment expenditure on the settlements.

Economic stability will create a climate thatencourages private investment, leading toincreased economic activity, and new partner-ships between Aboriginal and non-Aboriginalgroups.


• gives certainty to ownership and use of lands and resources

• propels economic growth by giving certainty and clear rules toinvestors and the public in general

• promotes and strengthens social partnerships between the govern-ment and First Nations and among First Nations groups themselves

• encourages Aboriginal self-reliance

• builds a new and more progressive relationship with Aboriginal peoples, based on mutual respect and trust

• avoids expensive lawsuits

• promotes investment and employment.

Summary of Benefits of Settling Land Claims: The Canadian Government’s View

In financial terms, the federal governmentleads the process of establishing cost-sharingarrangements with the relevant province/terri-tory in order to financially support the settle-ment of claims and attain certainty. Today,the federal government has cost-sharingarrangements with all provinces involved incomprehensive land claim negotiations.

SPECIFIC CLAIMSOverview and Policy Rationale: Canada'sSpecific Claims Policy was established to allowFirst Nations to have their claims appropriate-ly addressed through negotiations with thegovernment, rather than going through thecourts. Claims are accepted when it is deter-mined that Canada has breached its lawfulobligation to a First Nation through:

• the non-fulfilment of a treaty or otheragreement

• the breach of an Indian Act or other statu-tory responsibility

• the breach of an obligation arising out ofgovernment administration of First Nationfunds or other assets

• an illegal sale or other disposition of FirstNation land by government.

If a specific claim is rejected for negotiationbecause Canada has determined that the claimdoes not meet any of the eligibility criteria, aFirst Nation has the following options: to resub-mit the claim along with new evidence and/orlegal arguments; to litigate; or to petition theIndian Specific Claims Commission (ISCC) torequest an inquiry. The ISCC is an independentfederal commission whose mandate is to con-duct inquiries and make recommendations onthe validity of claims not accepted by Canada,

as well as on which compensation criteria applyin the negotiation of a settlement, if there is adisagreement over this issue.

Policy EvolutionIn 1973, the Department of Indian andNorthern Affairs (INAC) created the Office ofNative Claims to deal with both specific andcomprehensive land claims. By 1981, howev-er, only 12 of the approximately 250 specificclaims submitted to the government had beensettled. As a result, a broad consultationprocess with First Nations leaders was com-menced to find feasible ways to improve bothpolicy and process. Subsequently, the govern-ment decided to no longer apply the statutesof limitations and the doctrine of laches (com-mon law rules allowing courts to turn downclaims where the claimant had waited toolong to make a claim) in relation to Aboriginalclaims. Both policies had prevented severalspecific claims from being accepted, causingcriticism from First Nations leaders.

In 1991, following additional consultationswith First Nations leaders, Canada againchanged the process for the resolution of spe-cific claims. For instance, it quadrupled fund-ing for specific claims compensations (from$15 million to $60 million), created a "fasttrack" process for smaller claims (those under$500,000), lifted restrictions on the number ofclaims that could be negotiated at any onetime, and established the ISCC.

As of March 31, 2003, 1,185 specific claimshave been received; 540 cases are under review;112 are in negotiation (93 active negotiationsand 19 inactive negotiations); and 251 claimshave been settled. The remaining 282 caseshave been addressed in a variety of alternative


ways. Through specific claims settlements, FirstNations have received more than $1.7 billion aswell as the ability to acquire 3,486,372 acres ofland. Of these resources provided to FirstNations, the federal share was $1.52 billion and2,523.717 acres of land. Provinces contributed$278.4 million and 962,655 acres of land.

Future Directions:On June 13, 2002, INAC introduced theSpecific Claims Resolution Act to facilitate thesettlement of specific claims across the coun-try. The proposed legislation would bringgreater transparency, efficiency and fairness tothe specific claims process.

The proposed legislation would establish theCanadian Centre for the Independent Resolution ofFirst Nations Specific Claims (the Centre) toreplace the ISCC and would have aCommission division and a Tribunal divisionthat would have two distinct functions: the

Commission to facilitate negotiations and theTribunal to resolve disputes. The Commissionwould enable the resolution of all claimsregardless of value, drawing upon the entirerange of dispute resolution mechanisms toassist the parties to a specific claim in reachinga final settlement. In contrast, the adjudicativetribunal would be available to First Nations, asa last recourse, to make final binding decisionson the validity of specific claims that havebeen rejected by Canada, and cash compensa-tion on valid claims up to a maximum of $10 million. From a review of the claims set-tled to date, the majority are below $7 million.The bill sets out that the tribunal would alsoprovide cash compensation on valid claims upto a maximum of $10 million.


STEP ACTION

Submission of Claim The process begins with a formal claim submission by the First Nation.

Research of Claim To assess whether or not to accept the claim for negotiation, INAC undertakes an assessment and the Department of Justice formulates a legal opinion.

Acceptance or Rejection of Claim The Government of Canada informs the First Nation of the decision. If a lawful obligation isnot found, the First Nation can submit more information, ask the Indian Specific ClaimsCommission (ISCC) to intervene, or litigate. If a lawful obligation is found, the claim goesinto negotiation.

Negotiations After creating a general framework for negotiations, the parties work toward a SettlementAgreement. Following ratification, the Settlement Agreement is executed by INAC’sMinister. Usually, a signing ceremony is held to mark the end of negotiations.

Implementation Transfer of land and/or cash (as appropriate).

SPECIFIC CLAIMS PROCESS SUMMARY

OTHER CLAIMSThese are claims that, despite having a legiti-mate basis, do not meet the criteria set foreither comprehensive or specific land claims.By "legitimate basis," the Government ofCanada means morally rather than legallybinding obligations (as is the case with specificand comprehensive land claims). There arebasically two types of other claims:

1) Claims related to Aboriginal title:these are cases in which Aboriginal title waslegally dealt with but did not meet reasonablestandards for the time they were signed.

2) Claims relating to federal govern-ment responsibility: when a claim does notmeet the criteria set up for a specific claim butthe government believes the claim has moralgrounds to be accepted and dealt with throughalternative legal means.


Comprehensive land claims are negotiatedby the federal government, the relevant

provincial or territorial government, and theAboriginal group. INAC’s Comprehensive ClaimsBranch (CCB) represents Canada in negotiationswith Aboriginal groups outside of BritishColumbia (the Federal Treaty Negotiation Officeis responsible for claims within BritishColumbia). Generally, a core federal team willconsist of a Chief Federal Negotiator, legalcounsel, and several other negotiators or analysts.

As negotiations progress and issues unfold,representatives from different governmentdepartments – including Parks Canada Agency,Environment Canada, Fisheries and OceansCanada, Natural Resources Canada, CanadianHeritage – take part in the negotiations, eitherby joining the core team in person or by pro-viding recommendations or guidelines.

CLAIM STAGES: THE SIX STEPPROCESS

1. Submission of Claim:The claims process begins with the preparationof a statement of claim that includes support-ing materials. This statement identifies theAboriginal group and the general geographicarea of its traditional territory.

Under Canada’s comprehensive land claimspolicy, a well-supported claim is characterizedby the following:

• clear articulation of claim• evidence supporting the claim• a good document index

• an index to records research• the number of Aboriginal bands involved

in the claim• the population of the claimant group• the geographic area of the claim• a plan to address potential disputes arising

from overlapping claims with neighbour-ing Aboriginal groups.

Local sources of evidence may include the fol-lowing: Band Council Office records; churchrecords; cemeteries; birth, baptism, marriageand death records; mission diaries or "jour-nals"; general records; printed reports; churchstories; Aboriginal organizations; local govern-ment and local history museums; land titles or"registry" offices; provincial government


3. Comprehensive Land Claims Process

The following are the objectives that a comprehensive land claim processis generally expected to achieve for the federal, provincial or territorialgovernments and the Aboriginal group (objectives can vary from one groupto another):

• provide certainty of ownership, use and management of land andresources

• clarify the rights and duties of the federal and provincial or territorialgovernments and the Aboriginal group

• establish the rights and duties that other Canadians will have on thelands that the Aboriginal group claims

• determine how and to what extent lands and resources from bothwithin and outside the settlement area will be managed by the feder-al and provincial/territorial governments and the Aboriginal group

• provide a clear set of rules for Aboriginal self-government (its powersand jurisdictions) and how these will work with the powers and juris-dictions of other government levels

• set the amount of the cash settlement (and payment schedule) to begiven by the federal government to the Aboriginal group

• support and strengthen Aboriginal ways of life, which may includetraditional and sustainable relationships with the land.

Process Purpose

records; provincial archives; museums,libraries, archives and private collections; and,INAC regional and district offices.

Federal sources of evidence may include: theNational Archives of Canada; records of theDepartment of Indian and Northern AffairsCanada; records of the Secretary of State;records of the Department of the Interior;records of the Northern Affairs Branch; recordsof the Department of Citizenship andImmigration; records of New France; Britishmilitary and colonial records; early landrecords; fur trade records; Church records;Prime Minister’s papers; papers of missionaries,explorers and others; pictures, maps, and soundfilm archives; and, several other sources.

2. Acceptance of Claim:INAC’s Minister, with the advice of the Ministerof the Department of Justice, makes the finaldecision as to whether or not a comprehensiveland claim submitted by an Aboriginal groupwill be accepted for negotiation.

Assessing a claim for acceptance demands athorough analysis of the case presented by theAboriginal group. All the information submit-ted by the Aboriginal group is reviewed andresearched by the government. Once thereview and research process concludes, thegovernment sends its own findings to theclaimant Aboriginal group along with anexplanatory letter indicating whether furtherresearch is required. In some cases, the assess-ment process can take a long time, particularlywhen it involves the corroboration of archeo-logical research.

If a claim is not accepted for negotiation, theMinister will explain the reasons for rejectingthe claim to the Aboriginal group in a thor-ough and detailed manner.

3. Framework Agreement:Once a claim has been accepted, theAboriginal group and the federal and provin-cial/territorial governments initiate a firstround of negotiations in order to determinethe subject matters to be addressed in the set-tlement negotiations.

Essentially, the Framework Agreement servesas an agenda for negotiations, listing all sub-stantive issues to be covered in more detail asnegotiations progress. At this first stage ofnegotiation, the parties involved agree onissues to be discussed, how they will be dis-cussed, and a workplan for reaching anAgreement-in-Principle.

All claims are unique and, therefore, issuescentral to one Aboriginal group may not berelevant to another. For instance, harvestingrights to traditional resources such as the cari-bou could be central to one group; for anoth-er, harvesting rights to medicinal plants maybe of more importance.

4. Agreement-in-Principle (AIP):This is the deal-making stage, the phase wherethe parties reach agreements on the substanceof the issues that will form the FinalAgreement. The AIP is the result of a thor-ough and detailed scrutiny of the issues identi-fied in the Framework Agreement. It mustcontain the most important points to beagreed upon by the parties. The parties mustestablish a process for ratification of the AIPand the Final Agreement and set up a mecha-nism to develop an implementation plan.

5. Final Agreement and Ratification:As negotiations move from a basic FrameworkAgreement to an AIP and from there to a Final


Agreement, the nature and expertise of consul-tations evolves accordingly. In Final Agreementnegotiations, Canada obtains advice from con-sultants and working groups in order to guaran-tee that legal, economic, environmental, labour,resources, and social concerns are appraised andagreed upon by the parties. All groups aregiven a public forum to share information withlocal stakeholders and federal and provincialnegotiators and provide advice on the issuesunder negotiation.

Government negotiators must make clear official positions and interests, supply back-ground information on the topics under dis-cussion, and brief the different WorkingGroups on the status of negotiations at alltimes. During negotiations leading to theFinal Agreement there should be no need torenegotiate the terms and conditions agreed toin the AIP.

6. Implementation:The parties develop strategies to put in placeall the provisions of the Final Agreement.Along with legal drafting and land titling, thiscan be one of the most time consuming andcomplex assignments within the negotiationprocess.

The implementation process has two stages:

• the implementation plan• the monitoring and management of the

agreed activities.

Implementation plans are separate from theFinal Agreement and are not constitutionallyprotected. Implementation negotiatorsbecome involved in the process at the AIPstage and the implementation plan starts totake shape as the Final Agreement nears com-pletion. The Final Agreement identifies what

must be accomplished to execute the treaty,while the plan identifies who will do the tasksidentified, when they will be done, and whatresources will be made available to executethem. As an example, an agreement may callfor the creation of a joint fisheries manage-ment committee. In such a case, the imple-mentation plan would include the followingdetails:

• process for the establishment of the com-mittee

• how many members will represent eachparty and what mechanism(s) will be usedto appoint them

• procedures, policies and guidelines forbusiness

• funding to be allocated to the committeeover specific periods of time.

Implementation management should be anongoing, iterative process characterized by regular monitoring, feedback and correctiveaction. The focus of the parties should be onkeeping pace with the letter and intent of theobligations contained in the Final Agreement,maintaining a sound working relationship,and resolving implementation issues beforethey become disputes.

At the commencement of implementation man-agement, boards or commissions identified inthe comprehensive land claim agreement arecreated, appointments to those bodies areprocessed, funds begin to flow for undertakingidentified activities, and progress begins to bemonitored and reports prepared with respect tomeeting obligations. For self-government agree-ments, Aboriginal groups will begin to exercisetheir jurisdictions as provided for in the self-government agreement and implementationdocuments. Implementation committees areestablished and meetings held with the otherparties to discuss any implementation issues.


A mechanism to monitor the implementationof the agreement may be set out in the generalprovisions of the implementation plan, butusually merits a separate section in the imple-mentation plan. Monitoring includes: over-seeing the progress of implementation;addressing issues relating to implementation;amending the implementation plan in light ofchanging circumstances; and, conducting anyperiodic reviews.

THE PROCESS IN BRITISH COLUMBIA(BC)Unlike the comprehensive land claims processelsewhere in Canada, in British Columbia thefederal government does not accept or rejectparticular claims. Instead, the British ColumbiaTreaty Commission (BCTC) oversees a processwhich, at least in the first two stages, is muchless formal than in the rest of the country.

This is in part because both the federal andprovincial governments acknowledge the likeli-hood that much of British Columbia is encum-bered with unextinguished Aboriginal rights.

The BCTC is the independent keeper of the BCtreaty process. Its primary role is to overseethe negotiation process to make sure that the

parties are being effective and making progressin negotiations. In carrying out the recommen-dations of the BC Claims Task Force, the TreatyCommission has three roles—facilitation, fund-ing, and public information and education.

BCTC Process - Stages 1-21. Statement of Intent: a First Nation fileswith the BCTC a Statement of Intent to negoti-ate with Canada and BC. The Statement ofIntent:

• identifies the First Nation’s governingbody and the people that body represents

• shows that the governing body has a man-date to enter the treaty process

• describes the geographic area of the FirstNation’s traditional territory in BC

• identifies any overlaps in territory withother First Nations.

2. Readiness to Negotiate: the BCTC mustconvene an initial meeting of the three partieswithin 45 days of receiving a Statement ofIntent. This meeting allows the BCTC and theparties to exchange information, consider thecriteria for determining the parties’ readiness tonegotiate, and generally identify issues of con-cern. Each party must demonstrate that it has:

• a commitment to negotiate• a qualified negotiator who has been given

a clear mandate• sufficient resources to undertake negotiations• a ratification procedure.

Stages 3-6 are for the most part identical tothose in the rest of the country. The BCTC isable to provide dispute resolution servicesthroughout the process if a request for suchservices is made by the parties to a given set ofnegotiations.


The BCTC consists of four Commissioners and a Chief Commissioner whorepresent its three founders and principals as follows: two representativesfrom the First Nations Summit, one from British Columbia, and one fromthe federal government. The Commissioners are responsible for nominat-ing the Chief Commissioner who will be the full-time Chief Executive Officerof the BCTC and chair its meetings. All nominees are appointed by theLieutenant Governor in Council of British Columbia, the Governor in Councilof Canada and the First Nations Summit. Commissioners are appointed fora two-year term and the Chief Commissioner for a three-year term.

The British Columbia Treaty Commission (BCTC)

STRUCTURE OF COMPREHENSIVELAND CLAIM NEGOTIATIONS INCANADA

Main TableThe Main Table is where the substantive nego-tiations take place, in the presence of theChief Negotiators of all parties. Main Tablenegotiations may be open to the public andthe media, as is often the case under the BCTreaty Process. During some sessions, howev-er, negotiators require privacy to exchangeviews in a more discreet manner, brainstorm,and explore feasible alternatives to disagree-ments away from public scrutiny.

Working GroupsA typical land claims negotiation process dealswith hundreds of issues, but most of the tech-nical and detailed work is done by WorkingGroups whose main function is to focus onpractical rather than strategic issues.

The Working Groups are created by and placedunder the supervision of the Main Table to pro-duce work that must be approved by the ChiefNegotiators. This model works well because itleaves technical issues to experts who can workout practical solutions to particular problems.Often, Working Groups can find solutions toproblems that seem almost insurmountable toChief Negotiators. In addition, Working Groupsare responsible for narrowing down the scope ofissues before these are brought to the Main Tablefor further discussion and decision-making.

Legal DraftingAs negotiations proceed from a general discus-sion of interests to reaching agreement on specific issues, legal drafting work assumes

greater and greater importance. The text ofthe AIP and the Final Agreement must reflectaccurately and precisely all agreements theparties have reached on each issue brought tothe table. All parties must work together inphrasing agreements on highly contentiousissues in legal language which must stand thetest of time. While much of the technicaldrafting can be accomplished by a small groupwith legal expertise, their work needs to beapproved and sometimes renegotiated by theChief Negotiators at the Main Table.

OTHER ASPECTS OF THE COMPREHENSIVE LAND CLAIMSPROCESS

Financial Aspects: Preparation andNegotiation CostsThe federal government provides contributionfunding to First Nations interested in present-ing land claims in accordance with federalclaims policies. Such contributions cover thecosts of legal, land title and historical researchthat help the Aboriginal group in its submis-sion of a land claim. Depending on the com-plexity of the claim at stake, a research contri-bution could total up to $3.5 million, allocat-ed during many fiscal years.

When an Aboriginal claim is approved fornegotiation by INAC, contribution fundingends and a government loan enables theAboriginal party to cover negotiations-relatedexpenses. Loan funding will continuethroughout the process or until INAC decidesto halt a process that does not show progress.The current policy, which is under review, isthat the loan is recoverable as a first chargeupon settlement of the claim, unless otherwisestated in a final claim settlement agreement


reached between the parties to negotiation.Provincial and territorial governments alsocontribute to cover the costs of settling landclaims but the percentage of their share islower than the federal contribution.

The land claims process deals with complexissues and questions. As a result, it is oftenlengthy. Reaching a Final Agreement can takefrom 5 to 20 years, and the cost of negotiatinga comprehensive land claim varies between$15 and $50 million.

Remunerations and other costsThe federal government recognizes that com-prehensive land claims negotiations are com-plex enough to demand the full-time dedica-tion of several individuals for the Aboriginalgroup, and the part-time efforts of severalmore. Payments for salaries and benefits arededucted from the final cash settlement. Asnegotiations advance, the number of personson the negotiating team of the Aboriginalgroup is likely to grow, but the funding for theAboriginal team will often be limited to coverthe expenses of five persons (a typical teamcomposition). The Aboriginal group caninvite as many team members to participate innegotiations as they consider appropriate, butwill do so at their own expense.

Legal/consulting and travel costs are generallythe most expensive items for parties. InCanada, travel costs are often high due to thesize of the country and the remoteness of someAboriginal communities. Contractors and con-sultants, as well as specialized legal advice, areoften required as negotiations progress.

Once negotiations begin, the Aboriginal groupmust make a commitment to submit regularprogress reports and financial statements, and

agree to collaborate with annual audits con-ducted by the federal government to ensuresound financial management.

Acceptable expenses include the following:

• travel, accommodation and meals• legal and professional fees• consultation• interpretation and translation• land surveys• public information/education• administration and related expenditures.

Some restrictions apply to the loan granted bythe government to the Aboriginal group. Forinstance, loan funds cannot be used to sue theCrown or any other party without a writtenauthorization issued by INAC’s Minister.

OverlapsTraditional territories can and do overlap.This is especially true in British Columbia,where there are often multiple overlappingclaims. Overlaps may arise from many causes:a tradition of sharing territory for the use ofspecific resources; movements of families ortribes; or longstanding disputes. Where over-laps represent a tradition of sharing betweenAboriginal groups, this can be acknowledgedfor treaty purposes.

When an Aboriginal group commences treatynegotiations, it must have the authority tospeak for the traditional territory andresources that it claims. If there are significantunresolved overlaps, then that authority is inquestion. If the Aboriginal group is to makeprogress in treaty negotiations, overlaps mustbe resolved so that the parties can makearrangements without fear of a competingclaim to the territory or resource.


Ideally, competing Aboriginal claims over aterritory should be resolved before reaching anAIP, but this is not a compulsory requirement.

Interim Measures AgreementsCanada supports incremental steps in treaty-making that contribute to governance andeconomic development. Such tailored andincremental approaches must be developedwith input from all parties and reflect collec-tive objectives and expectations.

Appropriate incremental measures can play asignificant role in developing the experienceand capacity that Aboriginal groups need toproductively engage in treaty negotiations.Such measures can also contribute to a greaterunderstanding within Aboriginal communitiesof some of the potential benefits that a treatycan provide. Innovative and practical incre-mental measures can be effective tools in mak-ing sure the treaty process meets the circum-stances of individual communities. Interim

Measures Agreements (IMAs) and TreatyRelated Measures (TRMs) are incremental stepswhich can be taken toward finalizing a com-prehensive land claim.

IMAs provide for the protection, managementor use of land and resources before treaties areconcluded. The agreements are designed todeliver immediate benefits to Aboriginalgroups, serve as building blocks for finaltreaties, and provide a greater degree of certain-ty for land management and for business devel-opment. IMAs may provide funding for landprotection, economic development studies andjoint venture development, land-use planning,governance development, and cultural heritageinitiatives. Most IMAs are time-limited, inorder to provide an incentive for all parties tocontinue work toward a Final Agreement.

In British Columbia, TRMs must be directlylinked to the treaty process. TRMs addressmatters critical to the resolution of finaltreaties and the costs are shared by BC andCanada. For example, land protection agree-ments can set aside important parcels of landfor inclusion in a potential treaty settlement.

Negotiation PreparednessThe Negotiations Preparedness Initiative (NPI)funded more than 80 proposals in 2001-02,enabling Aboriginal groups to enhance theircapacities to negotiate the land and resourcescomponents of their comprehensive claimssettlements. Of the funding allocated, 45 per-cent went to projects under the BritishColumbia Capacity Initiative. Among thesewere projects to compile traditional resourceinformation, develop geographic informationsystems, plan for resource development andmanagement, and promote skills training.


• in the event of overlapping land claims, Aboriginal groups favour theresolution of the dispute through negotiation committees comprised ofa combination of community leaders and elders

• if two or more Aboriginal groups are unable to reach an agreement, theCanadian government will offer to assist them, generally by providingfinancial assistance for neutral mediation or facilitation services

• in instances where the overlapping claimant groups favour a govern-ment intervention, Canada will engage in overlap discussions at theinvitation of the groups in question

• in cases where all attempts at resolving overlaps fail, non-derogationlanguage may be added to settlement agreements stating the agree-ments are without prejudice to the rights of groups with overlappingclaims

• at the moment, Aboriginal groups are exploring additional approachesto solve land disputes among themselves that are acceptable to thefederal/provincial/territorial governments.

Approach to Resolving Conflicts Resulting fromOverlapping Land Claims


Beaufort Sea

Mer de Beaufort

Victoria

Melville

BanksIsland

Prince Patrick

Island

Pa

B26

B10

B12BA

B14

B11

B53

See the InsetVoir le carton intérieur

TLICHO(DOGRIB)DEH CHO

SOUTH SLAVE

Y1

Y2Y3

Y4

Y5

Y6

Y7

Y8

Y9

Y10

Y11

GWICH'IN

SAHTU

INUVIALUIT

ARCTIC OCEAN

OCÉAN ARCTIQUE

SASKATCHEWANDENESULINE MA

DEN

ALASKA

(U.S.A.)(É.-U.)

UNITED STATES OF AME

ÉTATS-UNIS D'AMÉRIQ

Gulf of Alaska

Golfe du d'Alaska

Y13

B21B28B36 B1

B42

B5

B47

B4

B27

B24

B50

B3

B7

Island

B6

B51

B48

B44

TREATYTRAITÉ

81899

TREATYTRAITÉ

61876

TREATY 6 / TRAITÉ 61889

Island

TREATYTRAITÉ

101906

TREATYTRAITÉ

111921

TREATYTRAITÉ 2

TREATYTRAITÉ

41874

TREATYTRAITÉ

71877

TRTR

PACIFIC OCEAN

OCÉAN PACIFIQUE

ROTRAITÉ

B2

Y12

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#

##D1

D2

D3D7

D9

D6

D5D4D14D12

D11D8

D13

D10

Vancouver Island Treaties(Douglas)

Traités de I'Île de Vancouver(Douglas)

Yukon First Nation Traditional TerritoriesTerritoires Traditionnels des Premières Nations du Yukon

White River (Beaver Creek) / Kluane (Burwash Landing) First NationsCarcross / Tagish First NationKwanlin Dun First Nation (Whitehorse)Kaska Dene Nation

Y8 -Y9 -Y10 -Y11 -

Settled Traditional Territories /Territoires Traditionnels - Ententes conclues:

Unsettled Traditional Territories /Territoires Traditionnels - Non résolues:

Champagne & Aishihik First Nations (Haines Junction) First Nation of Na-Cho Nyak Dun (Mayo)Little Salmon / Carmacks First NationsSelkirk First Nation (Pelly Crossing)Teslin Tlingit CouncilTr'on Dek Hwech'in First Nations (Dawson)Vuntut Gwich'in First Nation (Old Crow)Ta'an Kwach'an Council (Lake Laberge)Tetlit Gwich'in Tribal Council

Y1 -Y2 -Y3 -Y4 -Y5 -Y6 -Y7 -Y12 -Y13 -

B1 - Acho Dene Koe First NationB2 - Carcross/Tagish First NationB3 - Cariboo Tribal CouncilB4 - Carrier Sekani Tribal CouncilB5 - Champagne and Aishihik First NationsB6 - Cheslatta Carrier NationB7 - Haida NationB8 - Da'naxda'xw / Awaetlala NationB9 - Ditidaht First NationB10 - Esketemc First Nation (Alkali Lake)B11 - Gitanyow Hereditary ChiefsB12 - Gitxsan Hereditary ChiefsB13 - Gwa'-Sala-Nakwaxda'xw NationB14 - Haisla NationB15 - Hamatla Treaty SocietyB16 - Heiltsuk NationB17 - Homalco BandB18 - Hul'qumi'num Treaty GroupB19 - Hupacasath First NationB20 - In-SHUCH-ch CouncilB21 - Kaska Dene CouncilB22 - Katzie Indian BandB23 - Klahoose NationB24 - Ktunaxa / Kinbasket Treaty CouncilB25 - Kwakiutl First NationB26 - Lake Babine NationB27 - Lheidli T'enneh BandB28 - Liard First NationB29 - Musqueam NationB30 - 'Namgis First NationB31 - Nazko Indian BandB32 - Nuu-chah-nulth Tribal CouncilB33 - Oweekeno NationB34 - Pacheedaht First NationB35 - Quatsino First NationB36 - Ross River Dena CouncilB37 - Sechelt NationB38 - Sliammon Indian BandB39 - Snuneymuxw First NationB40 - Squamish NationB41 - Stó:Lõ NationB42 - Taku River Tlingit Tribal CouncilB43 - Te'Mexw Treaty AssociationB44 - Teslin Tlingit CouncilB45 - Tlatlasikwala First NationB46 - Tsawwassen First NationB47 - Tsay Keh Dene BandB48 - Tsimshian NationB49 - Tsleil-Waututh Nation B50 - Westbank First NationB51 - Wet'suwet'en Hereditary ChiefsB52 - Yale First NationB53 - Yekooche First Nation

__

Unsettled Land Claims / Revendications territoriales - Non résolues :

Settled Land Claims / Revendications territoriales - Ententes conclues :BA - Nisga'a Lisims Government_

B.C. Treaty Negotitations - Land ClaimsNégociations du traité de la C.-B.- Revendications territoriales

The lines on this map represent the approximate boundaries of traditional territories described in First Nation Statements of Intent to negotiate treaties which have been submitted to, and accepted by the B.C. Treaty Commission. They are illustrative only and may be updated in the future. Publication of this map does not imply that the First Nations, the Province of BC, or the Government of Canada have agreed to the boundaries shown.

Les lignes sur cette carte représentent les limites approximatives des territoires traditionnels décrites dans la Déclaration d'intention des Premières Nations pour négocier les traités qui ont été soumis et acceptés par la Commission du traité de la C.-B. Elles sont seulement illustratives et peuvent être mises à jour dans le futur. La publication de cette carte n'implique pas que les Premières Nations, la province de la C.-B., ou le Gouvernement du Canada ont consenti aux limites montrées.

B34

B45

B52

B17

B18 B20B22

B23B25

B29

B30

B32

B35B41

B37B34

B39B40

B43

B46B49

B31

B10

B8B13

B30

B10

VancouverIsland

Île deVancouver

B19

B15

B43

D1 - Queckar 1851D2 - Quakeolth 1851D3 - Saalequun 1854D4 - North Saanich 1852D5 - South Saanich 1852D6 - Chekonein 1850D7 - Chilcowitch 1850

Vancouver Island Treaties (Douglas)Traités de I'Île de Vancouver (Douglas)

D8 - Swenghung 1850D9 - Kosampson 1850D10 - Kakyaakan 1850D11 - Chewhaytsum 1850D12 - Soke 1850D13 - Teechamitsa 1850D14 - Whyomilth 1850


Hudson Strait Détroit d'Hudson

Pelee Island

Huntingdon Island

KALAALLIT NUNAAT (DENMARK)

Iceland

Baffin IslandÎle de Baffin

Hudson Bay

Baie d'Hudson

James Bay

Baie James

Davis Strait

Détroit de Davis

Labrador Sea

Mer de Labrador

ATLANTIC OCEAN

OCÉAN ATLANTIQUE

Baffin BayBaie de Baffin

Lake SuperiorLac Supérieur

Lake

Mich

igan

Lac M

ichiga

n

LakeHuronLac

Huron

Lake Erie

Lac Érie

Lake OntarioLac Ontario

St Law

rence

R Fl S

aint-L

auren

t

(FRANCE)

Foxe

Basin

SouthamptonIsland

Ellesmere IslandÎle d'Ellesmere

Princeof

WalesIsland

SomersetIsland

Bylot I

Ungava BayBaie d'Ungava

Foxe Channel

Parry Channel

ATIKAMEKWAND

MONTAGNAIS

NUNAVUT SETTLEMENT

AREAINNU NATION

NUNAVIK INUIT

NUNAVIK INUITLABRADOR INUIT ASSOCIATION

Lincoln SeaMer de Lincoln

MANITOBADENESULINE

EASTERNJAMES BAY

CREE JAMES BAY ANDNORTHERN QUEBEC

AGREEMENT

CONVENTION DE LABAIE JAMES ET DUNORD QUÉBÉCOIS

AMERICA

ÉRIQUE

NUNAVUT SETTLEMENT AREA

NORTHEASTERN QUEBECAGREEMENT

CONVENTION DU NORD-ESTQUÉBÉCOIS

d

TREATYTRAITÉ

51908

TREATYTRAITÉ

91929-30

ATY 2TÉ 2 1871

TREATY 1TRAITÉ 1

1871

TREATYTRAITÉ

51875

TREATYTRAITÉ

91905-06

UPPER CANADA TREATIESRÉGION DES TRAITÉS DU

HAUT-CANADA

Saint-Pierreet Miquelon

Gulf ofSt Lawrence

Golfe duSaint Laurent

TREATYTRAITÉ

31873

MANITOULIN ISLAND TREATYTRAITÉ DE MANITOULIN ISLAND

1862

UPPER CANADA TREATIESRÉGION DES TRAITÉS DU

HAUT-CANADA

WILLIAMS TREATIESTRAITÉ DE WILLIAMS

1923

ROBINSON-SUPERIORRAITÉ DE ROBINSON-SUPERIOR

1850 ROBINSON-HURONTRAITÉ DE ROBINSON-HURON

1850

ALGONQUINSOF EASTERN ONTARIO

PEACE AND FRIENDSHIPTREATIES

RÉGION DES TRAITÉSDE PAIX ET D'AMITIÉ

Sources:Department of Natural Resources Canada, Geomatics Canada, GeoAccess Division, 1992. 1 : 7 500 000 base map and Historic Treaties. Legal Surveys Division, 2003. Land Claim Boundaries.Indian and Northern Affairs, Federal Treaty Negotiation Office, 2000. BC Treaty NegotiationsBritish Columbia, Ministry of Aboriginal Affairs, Information Provision Branch, 2000. BC Treaty NegotiationsTreasury Board of Canada, Real Property Management Division, 2001. Vancouver Island Treaties.

Références:Le ministère des Ressources naturelles Canada, Géomatique Canada, Division GéoAccès, 1992. Carte de base 1: 7 500 000 et traités historiques. Division des levés officiels, 2003. Limites des revendications territoriales.Affaires indiennes et du nord, Bureau de négocation du traité fédéral, 2000. Négociations du traité de la C.-B.Colombie-Britannique, Ministère des affaires autochtones, Section de l'approvisitionnement en information, 2000. Négociations du traité de la C.-B.Secrétariat du Conseil du Trésor du Canada, Division de la gestion des biens immobiliers, 2001. Traités de I'Île de Vancouver.

Treaties and Comprehensive Land Claims in Canada Traités et revendications territoriales globales au Canada

Natural ResourcesCanada

Ressources naturellesCanada

October 2003 Edition / Édition octobre 2003

Produced by Legal Surveys Division, Geomatics Canada, Natural Resources Canada.Préparé par la Division des levés officiels, Géomatique Canada, Ressources naturelles Canada.

© 2003. Her Majesty the Queen in Right of Canada. Natural Resources Canada.© 2003. Sa Majesté la Reine du chef du Canada, Ressources naturelles Canada.

Scale 1:18 000 000 or one centimetre represents 180 kilometresÉchelle 1: 18 000 000 ou un centimètre représente 180 kilomètres

Lambert Conformal Conic Projection, Standard Parrallels 49° N and 77° NProjection conique conforme de Lambert, parallèles d'échelle conservés à 49° N et 77° N

Note : The lines on this map represent approximate boundaries for illustrative purposes.Note: Les lignes sur cette carte représentent les limites approximatives à des fins d'illustration.

180 0 180 360 540kilometres kilomètres

LÉGENDE

Région visée par le règlementde revendication territorialeRevendication territoriale - Non résolue

Traité historiqueHistoric Treaty

#

Limite de 200 mileFrontière internationaleLimite provinciale ou territoriale

Adhésion au traité historiqueHistoric Treaty Adhesion

Traité de l'île de Vancouver (Douglas)Vancouver Island Treaty (Douglas)

Land Claims Status / Situation actuelle des revendications territorialesLEGEND

Provincial, Territorial BoundaryInternational Boundary

200 Mile Limit

Unsettled Land ClaimSettled Land Claim Area

Peace and Friendship Treaty Traité de paix et d'amitié

Copies of this map may be obtained from Legal Surveys Division of Natural Resources Canada.Contact us by Telephone: (613) 947-0362, Email: [email protected] or visit our website at http://www.lsd.nrcan.gc.ca . Quote the map title.

Des copies de cette carte peuvent être obtenues auprès de la Division des levés officiels deRessources naturelles Canada. Entrez en contact avec nous par téléphone : (613) 947-0362,E-mail : [email protected] ou visitez notre site Web à http://www.lsd.nrcan.gc.ca.Veuillez indiquer le titre de la carte.

Third Party ConsultationsThird parties, such as regional businesses andlocal communities, have a vital role to play inthe comprehensive land claims process inCanada. Public understanding is necessary tosupport the resolution of these longstandingissues. Therefore, there is significant thirdparty consultation in the negotiation process.Such consultation addresses the concerns andinterests of all concerned parties and fosterspositive relations between Aboriginal peoplesand neighbouring communities. Third partyconsultation also ensures the eventual settle-ment is as balanced as possible and helps facil-itate positive economic outcomes for allinvolved, aboriginal and non-aboriginal.

In British Columbia, public consultation is amajor priority during treaty negotiations. Keyinterest groups throughout the province pro-vide input on the interests of business, labour,environment, recreation, fish and wildlifeorganizations and municipalities. TheGovernment of Canada also consults at thelocal level with representatives of social andeconomic groups. These third parties advisenegotiators on specific regional issues thatmust be considered in negotiations.

Third Party CompensationWhile it is the preference of the federal govern-ment to avoid any negative social or economicimpacts of comprehensive land claims settle-ments on third parties, where such impacts takeplace, compensation may be in order. Forestryand fisheries are two examples of economic sec-tors where the economic interests of third par-ties may be affected, and this must be taken intoaccount by federal and provincial negotiators. A bilateral federal/provincial committee is oftenformed to deal with such issues.

Legislative ConsultationLegislation at the provincial and federal levelis necessary to ratify a treaty. Federal andprovincial legislative measures may differ con-siderably from each other, and it is possibleAboriginal groups could take issue with bothof them. While it is not mandatory to reachagreement on legislation related to the treaty,by achieving a workable accord the potentialfor future legal battles can be diminished.

Local Government RelationsGiven the importance of intergovernmentalrelations at the local level, it is important todevelop the channels and means of coopera-tion between the Aboriginal group and neigh-bouring local governments early in the negoti-ation process.

Indian Act TransitionDuring negotiations, it is necessary to plan forthe smooth transition from the provisions ofthe Indian Act to the provisions of the FinalAgreement. Post-treaty, some or all aspects ofthe Indian Act will no longer apply to themembers of the Aboriginal group in question.The parties must also devise ways to preservethose aspects of the Indian Act that theclaimant group might have an interest inkeeping.

Complementary AgreementsThese are administrative agreements madebetween the federal or provincial governmentand an Aboriginal group that can accompanythe treaty. Unlike the treaty, however, suchagreements do not receive constitutional pro-tection.


Complementary agreements are usually time-limited and can be renewed or renegotiatedprior to expiry. Some examples include:

• access agreements to lands included in thetreaty for government and third parties

• good neighbour agreements• commercial trapping arrangements• land and resource management arrange-

ments within the traditional territory• economic development agreements• park management arrangements.

RatificationIn order to confer community legitimacy onthe Final Agreement, it must be ratified by theAboriginal group. Referenda have been identi-fied as the ideal way to reinforce the validityof Final Agreements and ensure their accept-ance by the justice system in the event anyparty should challenge their validity in thefuture. To date, the federal government hasgenerally required an absolute majority of eli-gible Aboriginal group members to vote infavour of the settlement before the FinalAgreement can be put into effect.

In addition to the referendum held by theAboriginal party, the provincial and federalgovernments must also ratify the treatythrough voting in the provincial legislatureand the federal Parliament.

In Canada, the Final Agreement needs to betranslated into both official languages, Englishand French, and may also be translated intothe language of the Aboriginal group.


Treaty negotiations identify and define arange of rights and obligations including:

existing and future interests in land; renewableand non-renewable resources; fisheries andwildlife; structures and authorities of govern-ment; relationship of laws; fiscal relations andso on. Since most issues under discussion willreceive constitutional protection, treatyarrangements must stand the test of time.

This chapter briefly describes some of theissues under negotiation within Canada.

Cash ComponentA Final Agreement specifies the total amountof the cash settlement to be provided by thefederal government to the respectiveAboriginal group (through the governmentthat represents it) as part of the land claim set-tlement. The amount of the cash settlementcomponent and its form of payment by thefederal government are central issues, as is therepayment schedule of the federal loan thatenabled the Aboriginal group to pursue theland claim settlement.

CertaintyCertainty over ownership and use of lands andresources is one of the primary goals of landclaims negotiations. A clear definition of therespective rights and obligations of Aboriginalgroups and other citizens is needed in all aspectsof the comprehensive land claims process,including the provisions of the Final Agreement.

In the past, the Government of Canadarequired Aboriginal groups to "cede, releaseand surrender" their undefined aboriginalrights in exchange for a set of defined treatyrights. This is referred to as the "extinguish-ment model," which many Aboriginal groupsconsider to be unacceptable by today’s standards.

In recent years, new approaches to achievingcertainty have been developed as a result ofcomprehensive land claims negotiations.These include the "modified rights model" pio-neered in the Nisga’a negotiations, and the"non-assertion model". Under the modifiedrights model, aboriginal rights are not extin-guished, but are modified into the rights artic-ulated and defined in the treaty. Under thenon-assertion model, Aboriginal rights are notextinguished, and the Aboriginal group agreesto exercise only those rights articulated anddefined in the treaty and to assert no otherAboriginal rights.

Commercial RecreationThe terms, conditions, and locations of poten-tial commercial recreational ventures must benegotiated. Such agreements can focus on theco-management of, or non-restricted access to,provincial/federal Crown lands for commercialrecreational purposes such as eco-tourism,guiding, and outfitting.


4. Issues to be Negotiated within theComprehensive Land Claims Process

Cultural ArtifactsIn some negotiations, an Aboriginal group mayconsider it important to preserve sites that havebeen traditionally significant to them for cul-tural or spiritual reasons. These sites mayinclude fish camps, trading posts, old missions,and historical and burial sites. For someAboriginal peoples, archeological evidence suchas moose and caribou skin clothing, stone axesand other tools that were used by their ances-tors may also have a spiritual value.

In other cases, the parties must identify andlist the cultural artifacts that may be returnedto an Aboriginal group by national and/orprovincial museums. As part of the AIP stage,discussions may focus on the cultural itemsthat should be returned to the Aboriginalgroup and the ones that could remain in theircurrent locations, as well as provisions toguide the negotiation of custodial agreementsbetween the Aboriginal group and the muse-um in question.

Dispute ResolutionDispute resolution is an essential element inmodern treaties in Canada and most FinalAgreements devote a chapter to outlining theprocess to be used to resolve potential disputesin the post-settlement environment. Disputeresolution can include a variety of approaches,including negotiation, mediation and arbitra-tion. The option of litigation remains if allother efforts fail.

Financial TransfersIn connection with a self-government arrange-ment, the parties negotiate an agreement (typ-ically called a fiscal financing arrangement or

a financial transfer agreement) relating theamount of funding the Aboriginal governmentwould receive from Canada in support of theoperation of the Aboriginal government.These arrangements are typically five yearagreements that include descriptions of fund-ing levels, payment schedules, accountabilityprovisions, information exchanges, annualadjustments and review and renewal processes.

Given the Government of Canada's view thatthe costs of self-government should be sharedamong the federal, provincial/territorial, andAboriginal governments, another considera-tion for the parties is the extent to which theAboriginal government's own sources of rev-enue would be taken into account when set-ting funding levels. It should be noted thatclaims and self-government arrangementsoften provide Aboriginal governments withaccess to new sources of revenues, such as tax-ation powers. The overall goal is to reduce thereliance of Aboriginal governments on trans-fers over time.

FisheriesIn some negotiations, fish is a central topicbecause of its importance to the relevantAboriginal group’s diet and culture, as well asto the economy of entire regions. In suchcases, fisheries can be among the most impor-tant and complex of subjects. Agreement maybe required on the following issues:

• agreement on allocations of fish species forfood, social and ceremonial purposes,and/or to expedite participation in thecommercial fishery

• creating a conservation trust• confirming the custodial or managerial

role of the Aboriginal group in the settle-ment area fisheries


• allocation of the resource internal to theAboriginal group.

Innovative management tools have beenimplemented in some areas of the countrywhere Fisheries Management working groupshave brought together commercial, sports, andAboriginal fishermen with federal and provin-cial officials.

ForestryThese discussions focus primarily on who isentitled to cut down trees, where such activi-ties would take place in the settlement area,and for what purposes. Areas of agreementwhich need to be reached include:

• the annual admissible cut in the landsunder claim

• forest practices and standards on treaty set-tlement lands

• recommendations for transition actions.

In general, land claims do not give ownershipof trees to the claimant Aboriginal groupexcept on private treaty settlement lands. Insome land claim settlements, the treaty doesnot guarantee a permanent supply of trees forindividual or commercial uses and does notentitle the relevant Aboriginal group to com-pensation for damage or loss of trees with theexception of those located within the group’sprivate lands.

In other land claim negotiations, however,forestry can be a central topic, particularlywhen an Aboriginal group considers gainingaccess to forest tenure and management a pri-mary objective of its land claim (to protectold-growth forests or spur economic develop-ment, for example). In such cases, foresttenure may be negotiated with the Aboriginal

group off settlement lands, allowing theAboriginal group an annual allowable cut tobe managed, in general, under applicableprovincial law.

Parks and Protected AreasThe creation, use, and management of parksand protected areas within an Aboriginalgroup’s traditional territory is often quite anemotional issue, as in the past parks and pro-tected areas had generally been created with-out consulting the affected Aboriginal group.Often, the creation of parks and protectedareas had the effect of limiting the hunting,fishing and gathering rights of Aboriginalgroups, as well as limiting access to importantcultural and spiritual sites.

Issues associated with the negotiation of thissubject include:

• confirming the demarcations made inmapping the traditional territory

• the creation of special management areas• the potential for renewable resource har-

vesting within parks and protected areas• cooperation in future planning and man-

agement• planning for the possible creation of future

parks and protected areas within the tradi-tional territory.

PlantsWhere plants are relevant to the claimantgroup, the parties must identify which plantswithin the settlement area the Aboriginalgroup has a particular interest in articulatingrights to gather and use for purposes includingfood, medicine, cultural expression, hunting,trapping or fishing. Issues include:


• identifying sites where plants can be gathered

• control (or licensing) of individuals gather-ing such plants.

In general, the government’s position on gath-ering rights for plants is that they cannot becollected in national parks or on lands ownedby the Crown where the plant gathering cango against other uses such as forestry, unlessspecial agreements to do so under specific con-ditions can be reached.

Subsurface ResourcesThis can also be a sensitive issue, especiallywhere conditions for oil and gas or mineralexploration may occur. In such instances, aFinal Agreement can include mechanisms bywhich a potential developer would consult therespective Aboriginal government and neigh-bouring communities to determine the envi-ronmental impact of exploration, its effects onwildlife harvesting, the location of camps andfacilities, employment and business prospectsfor the Aboriginal group, and processes for fur-ther consultations.

In British Columbia, ownership of subsurfaceresources is typically included in settlementlands, except where such rights have alreadybeen allocated. In other parts of Canada,ownership of subsurface resources may varyfrom negotiation to negotiation.

TaxationThere is a limited tax exemption for the prop-erty of "Indians" where the property is situatedon a reserve. This legislative tax exemption iscurrently contained in section 87 of the IndianAct, and has existed in some form since beforeConfederation. The purpose of the exemptionhas always been to preserve the entitlementsof "Indian" peoples to their reserve lands andto ensure that the use of their property ontheir reserve lands was not eroded by the abili-ty of governments to tax.

The continuation of the exemption is linked tothe status of the lands. If the land is no longerfederal land reserved for Indians (a reserve), theexemption will cease to apply. When theexemption ceases to exist, there is a strongmotivation for the Aboriginal governments to


• National Park creation and management within a settlement area willbe in consultation with the affected Aboriginal group

• agreements could allow the affected Aboriginal group to hunt, trap,fish and gather plants for non-commercial purposes within theNational Park

• any changes to park boundaries would need to be agreed to by therespective Aboriginal group and the government

• if a park is approved by both parties, a Park Management Committeecould be established to look after the park

• the Committee could have representation from both the Aboriginalgroup and Canada

• a park management plan would be the guide for preserving the parkand its resources such as fish and wildlife

• if commercial activities relating to wildlife and tourism are authorizedin the park, the Aboriginal group could have the right to refuse theissuance of new licenses for these activities

• the Aboriginal group could have priority for available jobs.

Among the benefits found in existing cooperative management agree-ments are:

• improved sustainability of resources through integrated management

• enhanced social and economic benefits for local Aboriginal peoples

• reasserted and protected Aboriginal and treaty rights

• reduced conflicts over resource use and development through partici-patory democracy.

The Canadian Approach: How Would a National Park Be Created and Managed in a Settlement Area?

enter into direct taxation agreements with thefederal government. In these agreements theAboriginal government levies a tax similar tothe income tax or the Goods and Services Taxand Canada will vacate the tax room beingexercised by the Aboriginal government. Thesetypes of agreements provide the Aboriginalgovernment with a source of revenue. In addition, the tax paid by the members, andpossibly non-members, is directed to theAboriginal government, and these tax agree-ments maintain the integrity of the tax system(ensuring an integrated system with no taxhavens or areas of higher taxation). Note thatthe Aboriginal governments may be able toenter into a similar type of arrangement with the applicable provincial or territorialgovernment.

Traditional KnowledgeThis is an issue in which Aboriginal peoplesfrom several countries have shown a tremen-dous interest either as part of land claimsand/or broader Aboriginal rights’ initiatives.

Canada takes the position there can be indi-rect protection of Aboriginal traditionalknowledge through the designation of certainsites as protected, or through arrangements forresource management. In addition, intellectu-al property can be protected through conven-tional copyright/patent laws.

WaterIn Canada, water is a common resource. As aresult, ownership of water resources is notconferred on individuals or groups. Issuesassociated with the negotiation of this subjectinclude:

• evaluating the economic and technicaldetails linked to water provisions in thesettlement area

• technical matters such as volumes, flow,licenses and reservation of water for domes-tic, industrial and agricultural pursuits.

This is often a sensitive issue in negotiationswhere water has a sacred connotation to theAboriginal group.

WildlifeIssues associated with the negotiation of thissubject include:

• hunting and trapping quotas• conservation issues (the identification and

protection of endangered species)• exchange or trade of wildlife and wildlife

products with other Aboriginal peoples• relationship between the federal, provin-

cial, and Aboriginal governments on mat-ters related to the planning, managementand protection of wildlife populations

• methods that can be used for harvestingwildlife

• hunting for commercial purposes (includ-ing naturalist activities such as guidingand outfitting for sport hunting and/orfishing).

In cases where fisheries are not central to set-tlement negotiations, it is included as wildlifealong with other animals and birds.


Before substantive negotiations on the topicof lands can commence in earnest, all par-

ties require a common understanding of thefacts. As a result, the following tasks shouldbe completed early in the AIP stage:

• production of a map demarcating all thelands claimed by the Aboriginal group

• full legal description of the boundaries tobe surveyed

• survey of the adjacent lands to the claimedarea

• municipal lands within the claimed settle-ment area must also be demarcated.

Existing InterestsThird party interests within the settlement area(see Land Selection section below) must be iden-tified, and a determination reached whetherthese should remain in the settlement area(under protection) or be removed or replaced.

Roads and AccessThe parties require a common understanding ofthe various types of existing roads on potentialsettlement lands. These might range fromprovincial highways to secondary highwaysand/or forestry access roads. Right-of-wayagreements for secondary roads and accessrights of non-Aboriginal users (commercial inparticular) to travel on the Aboriginal group’slands and waters are also important issues.

In most agreements, it has been determinedthat commercial travellers are authorized touse navigable rivers and waterways, portages

and waterfront lands within settlement lands,but must inform the Aboriginal government inadvance and refrain from the following: build-ing camps or structures, making major changes,causing damage to the land, and conductingany other commercial activities except travel-ling.

Land TitleThe issue of land title can prove thorny, andagreement on this should be reached prior tofinal land selection. Traditionally, Aboriginalland tenure systems were communal. Theyblended concepts of universal access and bene-fit within the group, universal participationand consensus in territorial management, andlargely porous boundaries according to socialrules. Land, wildlife, and other naturalresources were never considered commoditiesthat could be reduced to property.

Today, however, as Aboriginal groups inCanada are increasingly participating in thewider economy, a reconciliation of Aboriginalconcepts of land tenure with federal andprovincial land survey and registration systemsis occurring. In some treaties, Aboriginalgroups have negotiated the power to developtheir own land registry systems, although todate none have chosen to exercise this author-ity. At the same time, Aboriginal groups arealso considering the possibility of applying aminimal survey system for lands not targetedfor development, and a more defined systemwhere economic activities and developmentwould be concentrated.


5. The Land Selection Process

Land SelectionLand selection negotiations start during theAIP stage and are closely linked with relatedissues including: land ownership and access;wildlife harvesting and management; waterrights management; forestry; parks and pro-tected areas; environmental management; sub-surface resources; and, municipal lands chap-ters. Ideally, land selection should be complet-ed during the AIP stage, but in many cases thefinal selection is concluded with the FinalAgreement.

Federal principles for land selection includethe following:

• the needs and the interests of theAboriginal group should be acknowledgedin detail

• the interests of existing third parties with-in the settlement area should be respected

• land selection should promote and sustainthe economic development potential ofthe settlement area, including that ofneighbouring communities

• appropriate public lands should beretained for residential, commercial, indus-trial and recreational uses that can nurturefuture economic growth, development andimproved infrastructure in the aboriginaland non-aboriginal communities

• lands to be acquired by the Aboriginalgroup should be representative of the over-all topography and quality of the lands ofthe settlement area

• governments should avoid land selectionin areas where there are overlappingclaims by two or more Aboriginal groups

• enough Crown land should be left aroundeach community for public purposes thatinclude recreation and wildlife harvesting.

Prior to land selection negotiations, the federaland provincial land selection teams request,verify, check and analyse data on governmentand third party interests for the region, includ-ing, but not limited to:

• reservations to the Crown• land grants and titled lands• surface leases• rights-of-way• land use permits• quarrying permits• water use permits and licenses• commercial fishing licenses• timber permits• mineral claims and leases, including oil and

gas exploration licenses and agreements• harvesting agreements• guide outfitter and lodge licenses• parks and protected areas• cattle grazing leases• harbour and airport authorities• hazardous waste sites.

The parties prepare a comprehensive and user-friendly database of third party interests in thelands at stake, which are plotted on a1:250,000 scale base map. Such maps are thenused to help focus land selection negotiationswith the claimant group.

Aboriginal interests in land selection include:

• residential• cultural and spiritual• economic (lands suitable for economic

development as well as lands suitable forresource extraction)

• social and recreational.

The actual process of selecting lands oftenincludes a great deal of community consulta-tion for the Aboriginal group in question. Thiscan be among the most emotional componentsof treaty making, as Aboriginal persons must


reconcile their cultural and historical connec-tion to all of their traditional territory with therequirement to choose specific sites where theirownership will be recognized by all parties.

For the government negotiators, the process ofland selection includes a great deal of consul-tation with aboriginal and non-aboriginalgroups alike. Guided tours of the traditionalterritories are necessary to enhance theirunderstanding of the history of the area, aswell as to shed more light on the Aboriginalperspective towards lands and naturalresources.

The following lands are generally excludedfrom selection:

• lands owned in fee-simple• lands under lease, license or agreement for

sale• lands occupied by, transferred to, or

reserved to any government department oragency from the federal, provincial ormunicipal level

• lands occupied by or needed for communi-ty infrastructure projects

• lands in national or provincial parks, pro-tected areas and/or critical wildlife habitat

• public highways and winter roads.

Privately owned lands may be acquired bygovernments for treaty settlement purposes ona willing-buyer, willing-seller basis. All otherthird party interests in lands and resources arenormally honoured.

Finalizing Land SelectionNegotiationsThe following steps can be used by the partiesto finalize land selection negotiations:

• using as a guide the interests expressed bythe Aboriginal Group based on the largerscale maps already produced, the federaland provincial teams prepare 1:50,000scale maps of specific areas of the tradi-tional territory

• detailed and sometimes time-consumingnegotiations ensue - it is often necessaryfor government negotiators to visit thelands in question to acquire a first-handknowledge of the geography, history andeconomic development potential of thelands as well as to better understand theconnection the Aboriginal group has withthe land

• the federal and provincial teams set draftland selection schedules, to eventually beaffixed to the Final Agreement

• the parties finalize the maps needed towithdraw the selected lands from theinventory of available lands

• governments review the maps and proceedto withdraw the lands from the inventoryof available lands

• the parties conduct a 60-day public reviewand consultation on the land selection toensure no legal interests have been nega-tively effected

• maps are ratified or amended based on theresults of the 60-day public review.


The Government of Canada’s policy recog-nizing the inherent right of Aboriginal

peoples to self-government as an Aboriginalright within section 35 of the Constitution Act,1982, was set out in the Inherent Right Policy in1995. This constituted a major step forward ingovernment-Aboriginal relations, and madethe right to self-government a primary policyfocus for the negotiation and implementationof practical arrangements.

Self-government negotiations are open toAboriginal peoples who live on reserves andare covered by the Indian Act, as well as otherAboriginal peoples. Access is not limited toAboriginal peoples who meet the criteria tonegotiate a comprehensive, specific or otherland claim. Generally, Aboriginal groupsnegotiating a comprehensive land claim cannegotiate self-government arrangements aspart of that claim.

One of the main objectives in contemporarygovernment-Aboriginal relations is the negoti-ation of stable government structures capableof delivering the programs and servicesrequired by Aboriginal constituencies in a sus-tainable manner that helps develop greaterAboriginal self-reliance. Aboriginal govern-ment structures should be designed to workwell with other levels of government.

Another objective of self-government is toassist First Nations in protecting their cultureand heritage, and to allow them to managetheir own lands, resources and assets.Aboriginal self-government will give FirstNations the legitimate tools they need to makea tangible, positive difference in the lives of


6. Self-Government

• governing structures, internal constitution, elections• membership• marriage• adoption and child welfare• Aboriginal languages, culture and religions• internal taxation systems• education• health• management of capital• hunting, fishing, trapping on Aboriginal lands• administration and enforcement of Aboriginal laws• policing• property rights• public works• housing• local transportation• licensing and regulation of businesses on Aboriginal land• land management• agriculture.

• divorce• labour/training• administration and enforcement of laws of other jurisdictions• penitentiaries and parole• environmental protection, assessment and pollution prevention• fisheries co-management• gaming• emergency preparedness and response support• migratory birds co-management.

There are a number of subject matters where there are no compelling rea-sons for Aboriginal governments or institutions to exercise law-makingauthority. These subject matters cannot be characterized as either integralto Aboriginal cultures, or internal to Aboriginal groups. They can be groupedunder two headings:

• powers related to Canadian sovereignty, defence and external relations;and,

• other national interest powers.

In these areas, it is essential that the federal government retain its law-making authority.

Self-Government Aspects Considered Integral to AboriginalPeoples and Essential to Their Operation as a Government:

Aspects Considered to be Beyond Those Integral and Internal toAboriginal Peoples but for Which the Canadian Government Wouldbe Willing to Negotiate Some Measure of Jurisdiction or Authority:

Issues NOT subject to Negotiation as part of Self-Government Agreements:

Aboriginal peoples and enable them to exer-cise greater control over their lives.

Federal and provincial laws will continue toapply to First Nation lands, including federallaws such as the Criminal Code, the CanadianEnvironmental Assessment Act and theFisheries Act. Canada’s view is that federal,provincial, and First Nation laws will all applyto First Nation land at the same time, evenwhen they pertain to the same subject matter,and that priority rules will be included to dealwith conflicts between the laws.

First Nation laws will, for the most part, befocused on matters that are internal to a FirstNation and integral to its culture. Clarity andharmony between the First Nation, federal andprovincial jurisdictions will be establishedthrough detailed, clear and precise definitions ofFirst Nation law making power, and the inclu-sion of rules of priority to deal with conflicts.

Canada remains clear that its national sover-eignty must in no way be affected by self-gov-ernment negotiations and agreements. Self-government arrangements resulting fromtreaties must operate within the CanadianConstitution and will not result in sovereignstates or autonomous enclaves within theboundaries of Canada. The authority ofAboriginal groups must be exercised withinthe Canadian constitutional framework.

The Government is committed to the principlethat the Canadian Charter of Rights andFreedoms should bind all governments inCanada, so that Aboriginal peoples and non-Aboriginal Canadians alike may continue toenjoy equally the rights and freedoms guaran-teed by the Charter. Self-government agree-ments, including treaties, will therefore haveto provide that the Canadian Charter of Rightsand Freedoms applies to Aboriginal governments

and institutions in relation to all matters withintheir respective jurisdictions and authorities.

The Charter itself already contains a provisiondirecting that it must be interpreted in a man-ner that respects Aboriginal and treaty rights,which would include, under the federalapproach, the inherent right. The Charter isthus designed to ensure a sensitive balancebetween individual rights and freedoms, andthe unique values and traditions of Aboriginalpeoples in Canada.

Key Principles for Implementingthe Federal Approach to Self-GovernmentThe government’s view on Aboriginal self-gov-ernment recognizes the principle that the"one-size-fits-all" approach is not viable. As aresult, self-government agreements can takemany different forms depending on the struc-ture, culture, needs and strengths of eachAboriginal group.

There are different governance structures inCanada today. These include: public govern-ment, like that of the Inuit in NorthernQuebec and Nunavut; a community-basedarrangement like that of the Sechelt band ofBritish Columbia; and more complex arrange-ments such as the Nisga’a Agreement whichinvolves a Nisga’a constitution and provisionsfor the establishment of Aboriginal courts.

Funding is provided by the federal governmentto the Aboriginal group to support themthrough comprehensive claims and self-govern-ment negotiations. The funding can take theform of a loan (in comprehensive land claimnegotiations) or a contribution (in self-govern-ment negotiations separate from comprehensiveland claim negotiations). Federal funding for


the implementation of self-government provi-sions comes from sources already allocated tofederal government departments whoseresponsibilities will be transferred to theAboriginal government. In addition, Canadaprovides some short-term implementationfunding.

For monies received from the federal govern-ment, Aboriginal groups are financiallyaccountable to Canada. In addition,Aboriginal groups must be as politically andfinancially accountable to their constituenciesas other levels of government, through princi-ples of transparency, disclosure and redress.Public accounts must be made available andannual public audits must be conducted. Thefinancial records must comply with standardaccounting practices of governments inCanada.

The financing of Aboriginal land claims andself-government is considered a joint responsi-bility of the federal, provincial/territorial, andAboriginal governments. In support of thisprinciple, the parties to the negotiations deter-mine within government-to-government fiscalagreements the extent to which a newAboriginal government’s own-source revenueswill be used to offset federal/provincial/territo-rial government funding.

For more information on self-governmentnegotiations, including the current status ofon-going negotiations, please consult theINAC web site: http://www.ainc-inac.gc.ca


Critics of Canada’s comprehensive landclaims process state it is taking too much

time to produce results. This is hardly surpris-ing. The comprehensive land claims processdeals with issues of great complexity, must rec-oncile an Aboriginal sense of historic injusticewith a government desire for a process whichlooks to the future, and must build trustbetween Aboriginal and non-Aboriginal nego-tiation teams, as well as between Aboriginaland non-Aboriginal populations and commu-nities.

It stands to reason that the negotiation ofcomprehensive land claims and self-govern-ment agreements takes time. These processesare intended to fundamentally change therelationship between Aboriginal peoples, theprovince or territory in question, and Canada,a relationship that has been unsatisfactory forseveral hundred years.

In these negotiations, representatives of differ-ent cultures set out to achieve a commonunderstanding. The negotiations are compli-cated by the fact that three different parties(the First Nation, Canada, and the province orterritory in question) come together in negoti-ations with differing, and often competing,sets of needs, interests, and aspirations. Often,Aboriginal groups feel that governments have

a history of making decisions that affectAboriginal peoples, without first undertakingappropriate consultation.

Good faith can only be built slowly, and theimportance of interpersonal relationships can-not be overestimated. In building trust andnurturing relationships, it is sometimes thesmallest things that have the largest impact:

• respect the cultural traditions of theAboriginal group with whom the negotia-tions are taking place

• promise only that which the governmentcan deliver

• avoid confrontation when communicatinginterests and positions

• reflect the interests of the Aboriginal group- they need to realize the government andits representatives understand and respecttheir perspectives and positions

• wherever possible, maintain the composi-tion of the negotiation team over time:many Aboriginal groups and their leadersplace emphasis on personal relationshipsin negotiations as important as these

• visit the Aboriginal communities in ques-tion on a frequent basis, talking to elders,and promoting joint social events andactivities such as meals, fishing trips, andvisits to culturally significant sites.


Conclusion

"For too long, the voices of Aboriginal peoples have not been heard in the councils of government or in themanagement of their own economic, social and cultural affairs. Too many still live in grinding povertyand lack the tools necessary to improve their quality of life. To overcome these challenges we must enterinto a true dialogue and a true partnership with the goal of building a better future."

Canada’s Prime Minister, Jean Chrétien, in a letter sent to delegates attending the first Indigenous PeoplesSummit of the Americas, Ottawa, March 2001.

More often than not, the length of time neces-sary to build trust and conduct negotiationscan be the negotiators’ best friend. Timeallows negotiators from all parties to reflectupon entrenched positions and come back tothe negotiating table in a more conciliatoryspirit. In some instances, land claims negotia-tions have collapsed on the verge of signing aFinal Agreement, but the passage of time hasallowed the parties to return to the negotiat-ing table and work out their disagreements.

Also crucial to the long-term success of theprocess is keeping both Aboriginal and non-Aboriginal communities well-informed andeducated on the purpose and status ofAboriginal land claims negotiations. TheCanadian process allows Aboriginal peoplesnot only to express their views and state theirgrievances, but also to participate in the for-mulation of the terms and conditions of theirown settlement. It also gives other Canadiansthe opportunity to express their concernsthrough the consultation process.

The degree of skepticism among third partiesprior to the beginning of land claim negotia-tions is often high. Opponents to Aboriginalland claim settlements have attempted tohighlight the aspects of the land claim processand its implementation that they would labelas "negative," yet there has not been a singlecase where the resolution of an Aboriginalland claim has resulted in economic or politi-cal chaos in Canada. In addition, no majorconfrontation or threat involving nationalsecurity or sovereignty has occurred as a resultof the Aboriginal land claims process.

In the Canadian context, business leaders weregenerally opposed to negotiations in the earlystages of the land claims process because of con-cerns that Aboriginals would prevent resource-based development ventures post-settlement.

Over time, business leaders have embraced theclaims process and pushed for certainty. As theclaims process has advanced, business leadersand non-Aboriginal communities have foundthat the injection of federal cash in a regionthrough a land claim settlement often stimu-lates and helps diversify the local economy.

Social and Economic Impact of theAboriginal Land ClaimsSettlements Process in theCanadian ContextTo date, data regarding changing socio-econom-ic conditions does not exist for Aboriginalgroups who have achieved a comprehensiveland claim with the federal and provincial/terri-torial governments. By all measures currentlyavailable, however, consequences appear to bepositive. Collective ownership, access to andco-management of land, economic opportuni-ties, capital, and resources revenue as well asthe creation of governance structures to man-age these resources have created and expandeda wide range of Aboriginal businesses.

Thanks in large part to the certainty andresources, both fiscal and natural, that comewith Final Agreements, Aboriginal groups inCanada are poised to become key partners insome of North America's major economic proj-ects including Voisey's Bay NickelDevelopment, the Alaska Pipeline project, theMacKenzie Valley Natural Gas Pipeline Project,as well as diamond projects in the NorthwestTerritories and Nunavut.

Each Aboriginal group takes a differentapproach to the capital transfer that comeswith settling a comprehensive land claim.Some groups have opted for focusing theirinvestments in regional ventures while others


have decided to invest most of their capitalmore broadly in ventures outside their regions.The new breed of empowered AboriginalCanadians who now exercise a much greaterlevel of control over their traditional territoriesand resources are not opposing new economicventures proposed by non-Aboriginal businessgroups in their lands. Aboriginal groups dogenerally demand that suggested ventures befair to them and not threaten their values andtraditions. Non-Aboriginal Canadians, mean-while, have adjusted well to the new agree-ments and demands, political systems haveadapted, and businesses have quickly foundnew forms of managing post-settlement condi-tions. For instance, many businesses are capi-talizing on new opportunities through joint-ventures with Aboriginal entrepreneurs.

Aboriginal peoples with modern-day treaties areusing their new resources to participate inbroader contexts and interact more activelywith non-Aboriginal Canadians, making the lat-ter more aware of the richness and diversity ofAboriginal cultures. Moreover, land claims set-tlements and self-government arrangementshave given Aboriginal peoples better tools withwhich to preserve their traditions and cultures.This has led to a greater number of non-Aboriginal Canadians becoming more interest-ed in Aboriginal cultures. Together, Aboriginaland non-Aboriginal Canadians are building cul-tural bridges that are enhancing mutual under-standing and respect. The Nisga’a, for example,have founded an institution named "Nisga’aHouse of Wisdom" which offers Nisga’a-basedpost-secondary programs that attract scholarsfrom as far away as Japan, Europe, China, andNew Zealand.

Overall, Aboriginal land claim settlements havenot produced the political and economic disrup-tion, disharmony, and dislocation that itsstrongest critics foresaw. While the land claims

process has not provided instant solutions tothe long standing problems associated withAboriginal poverty, Aboriginal social and eco-nomic indicators are gradually improving.

Canada sees the process of settling Aboriginalclaims as a bridge to a future where Aboriginalcommunities operate under a system of govern-ment created by Aboriginal peoples forAboriginal peoples. A future where leaders areless accountable to the federal government andmore accountable to their own communities. A future where First Nation communities aremore self-reliant and self-sufficient. A futurewhere communities offer the stability that willlead to economic development, dignity andhope.


Annexes:

*Map of Treaties and Comprehensive Land Claims in Canada on pages 20-21.


Agreement Year brought Land Populationinto effect

James Bay and Northern 1975 5,290 sq km 12,103 CreeQuebec Agreement 8,643 Inuit

Northeastern Quebec Agreement 1978 Integrated into 600 Naskapiabove agreement

Inuvialuit 1984 435,000 sq km 2500

Gwich’in 1992 57,000 sq km 2300

Nunavut Territory 1993 1.9 million sq km 19,000 Inuit

Sahtu Dene and Metis 1994 280,278 sq km 2400

Nisga’a 2000 2,000 sq km 6,000 Nisga’a

Tlicho 2004 (estimated) 39,000 sq km 3,500

Eight Final Agreements where also signed with Yukon First Nations based on the Yukon Indians Umbrella Final Agreement of1993, which also included Self-Government agreements with:

The Vuntut Gwich’in First Nation 1995 41,439 sq km 8000(it includes the area

claimed by 6additional groups

who are in theprocess of reachinga Final Agreement )

The First Nation of Nacho Nyak Dun 1995

The Teslin Tlingit Council 1995

The Champagne and Aishihik First Nations 1995

The Little Salmo/Carmacks First Nation 1997

The Selkirk First Nation 1997

The Tr’ondek Hwech’in First Nation 1998

The Ta’an Kwach’an Council 2002

The above claims cover 4 million sq. km of Canadian territory – about the size of the combined territories of Mexico,Venezuela and Colombia, or slightly less than the combined areas of Argentina and Peru – and were supplemented by capitaltransfers to Aboriginal groups of $2.2 billion.

Summary of Comprehensive Land Claims Settled as of August 2003 in Canada

The Constitution Act, 1982, recognizes threegroups of Aboriginal peoples -- Indians,

Inuit and Métis. In addition, the Indian Actdelineates the legal definitions that apply toStatus Indians in Canada: a Status Indian is anIndian person who is registered under theIndian Act. Métis peoples are of mixed FirstNations and European ancestry, who identifythemselves as Métis. The Inuit are theAboriginal peoples of Arctic Canada and liveprimarily in Nunavut, the NorthwestTerritories and northern parts of Labrador andQuebec. The Inuit do not live on reserves andare not covered by the Indian Act.

INAC's core responsibilities with respect toAboriginal peoples are primarily related to StatusIndians living on reserves, and the Inuit. INACis responsible for the delivery of provincial-typeprograms and services on reserves. In the North,INAC works in cooperation with Inuit and otherAboriginal communities to develop governancestructures and to finalize and implement landclaims and self-government agreements. Giventhe unique context of Canada's North, and inaccordance with the federal policy on Aboriginalself-government, some agreements also includeMétis north of 60° latitude.

Based on 1998 projections, Status Indians living on reserves represent about 61 percentof the Status Indian population. There are445,436 on-reserve Status Indians and 285,139who reside off-reserve. In total, there are 614First Nations communities, comprising 52nations or cultural groups and more than 50languages. About 61 percent of First Nationscommunities have fewer than 500 residents --only six percent have more than 2,000.

Overall, 34.6 percent of on-reserve StatusIndians live in urban areas, while 44.6 percentlive in rural areas; 17.0 percent live in special-access areas and 3.7 percent in remote zones.

The on-reserve Status Indian population isexpected to increase by 57.9 percent from2003 to 2021, compared with 12.0 percent forthe Canadian population as a whole. About40.4 percent of the Status Indian population isunder the age of 19, compared with 25.2 per-cent for the Canadian population.

In Canada's North, which occupies 40 percentof Canada's land mass, there are three territo-ries consisting of some 96 organized commu-nities, most of them home to small popula-tions of First Nations, Métis or Inuit.Widespread distribution of the populationincreases the cost of providing services. Some92,300 residents are scattered across this area;Nunavut's population is 26,700, while thereare 37,100 people in the Northwest Territoriesand 28,500 in the Yukon.

The population in the North is young, with43.6 percent of the population under the ageof 25. A little over half of the population isAboriginal, varying from 85.7 percent inNunavut to about 51 percent in the NorthwestTerritories and about 24.5 percent in theYukon. There are few reserves.


Profile of Canada's Aboriginal Peoples

Aboriginal peoples"Aboriginal peoples" refers to the original peo-ples of North America and their descendants.The Canadian Constitution (Constitution Act,1982) recognizes three groups of Aboriginalpeoples — Indians, Métis and Inuit. These areseparate peoples with unique heritages,languages, cultural practices, and spiritualbeliefs.

Aboriginal rightsRights that some Aboriginal peoples of Canadahold as a result of their ancestors' long-standinguse and occupancy of the land. The rights ofcertain Aboriginal peoples to hunt, trap and fishon ancestral lands are examples of Aboriginalrights. Aboriginal rights vary from group togroup depending on the customs, practices, tra-ditions, treaties, and agreements that haveformed part of their distinctive cultures.

Aboriginal self-governmentGovernments designed, established andadministered by Aboriginal peoples under theCanadian Constitution through a process ofnegotiation with Canada and, where applica-ble, the provincial government.

Aboriginal titleA legal term that recognizes an Aboriginalinterest in the land. It is based on the long-standing use and occupancy of the land bytoday's Aboriginal peoples as the descendantsof the original inhabitants of Canada.

bandA band is a body of Indians for whose collectiveuse and benefit lands have been set apart ormoney is held by the Crown, or declared to be aband for the purposes of the Indian Act. Eachband has its own governing band council, usual-ly consisting of one chief and several council-lors. Community members choose the chief andcouncillors by election, or sometimes throughcustom. The members of a band generally sharecommon values, traditions and practices rootedin their ancestral heritage. Today, many bandsprefer to be known as First Nations.

band councilThis is the governing body for a band. It usu-ally consists of a chief and councillors, whoare elected for two or three-year terms (underthe Indian Act or band custom) to carry outband business, which may include: education;water, sewer and fire services; by-laws; commu-nity buildings; schools; roads; and other com-munity businesses and services.

First Nation(s)A term that came into common usage in the1970s to replace the word "Indian," whichsome people found offensive. Although theterm First Nation is widely used, no legal defi-nition of it exists. Among its uses, the term"First Nations peoples" refers to the Indianpeoples in Canada, both Status and Non-Status. Some Indian peoples have also adoptedthe term "First Nation" to replace the word"band" in the name of their community.


Glossary of Terms

IndianThe term "Indian" collectively describes all theAboriginal peoples in Canada who are notInuit or Métis. Indian peoples are one of threepeoples recognized as Aboriginal in theConstitution Act, 1982. It specifies thatAboriginal peoples in Canada consist of theIndian, Inuit and Métis peoples.

There are three categories of Indians inCanada: Status Indians, Non-Status Indiansand Treaty Indians.

Status IndiansStatus Indians are people who are entitled tohave their names included on the IndianRegister, an official list maintained by the fed-eral government. Certain criteria determinewho can be registered as a Status Indian. OnlyStatus Indians are recognized as Indians underthe Indian Act, which defines an Indian as "aperson who, pursuant to this Act, is registeredas an Indian or is entitled to be registered asan Indian." Status Indians are entitled to cer-tain rights and benefits under the law.

Non-Status IndiansNon-Status Indians are people who considerthemselves Indians or members of a FirstNation but whom the Government of Canadadoes not recognize as Indians under the IndianAct, either because they are unable to provetheir status or have lost their status rights.Many Indian people in Canada, especiallywomen, lost their Indian status through dis-criminatory practices in the past. Non-StatusIndians are not entitled to the same rights andbenefits available to Status Indians.

Treaty IndianA Status Indian who belongs to a First Nationthat signed a treaty with the Crown.

Indian ActCanadian federal legislation, first passed in1876, and amended several times since. It setsout certain federal government obligationsand regulates the management of Indianreserve lands, Indian moneys and otherresources. Among its many provisions, theIndian Act currently requires the Minister ofIndian Affairs and Northern Development tomanage Indian lands and certain moneysbelonging to First Nations, and to approve ordisallow First Nations by-laws. In 2001, thenational initiative Communities First: FirstNations Governance was launched, to consultwith First Nations peoples on the issues ofgovernance under the Indian Act.

InuitInuit are the Aboriginal peoples of ArcticCanada. Inuit live primarily in Nunavut, theNorthwest Territories and northern parts ofLabrador and Quebec. They have traditionallylived above the treeline in the area borderedby the Mackenzie Delta in the west, theLabrador coast in the east, the southern pointof Hudson Bay in the south, and the HighArctic islands in the north.

Inuit are not covered by the Indian Act.However, in 1939 the Supreme Court inter-preted the federal government's power tomake laws affecting "Indians, and Landsreserved for the Indians" as extending to Inuit.

The word "Inuit" means "the people" inInuktitut, the Inuit language, and is the termby which Inuit refer to themselves. Avoidusing the term "Inuit people" as the use of"people" is redundant. The term "Eskimo,"applied to Inuit by European explorers, is nolonger used in Canada.


land claimsIn 1973, the federal government recognized twobroad classes of claims — comprehensive andspecific. Comprehensive claims are based onthe assessment that there may be continuingAboriginal rights to lands and natural resources.These kinds of claims come up in those parts ofCanada where Aboriginal title has not previous-ly been dealt with by treaty and other legalmeans. The claims are called "comprehensive"because of their wide scope. They include suchthings as land title, fishing and trapping rights,and financial compensation. Specific claimsdeal with specific grievances that First Nationsmay have regarding the fulfilment of treaties.Specific claims also cover grievances relating tothe administration of First Nations lands andassets under the Indian Act.

MétisThe word "Métis" is French for "mixed blood."The Canadian Constitution recognizes Métispeople as one of the three Aboriginal peoples.

Historically, the term "Métis" applied to thechildren of French fur traders and Cree womenin the Prairies, and of English and Scottishtraders and Dene women in the North. Today,the term is used broadly to describe peopleswith mixed First Nations and European ances-try who identify themselves as Métis, distinctfrom Indian peoples, Inuit, or non-Aboriginalpeople. (Many Canadians have mixedAboriginal and non-Aboriginal ancestry, but notall identify themselves as Métis.) Note thatMétis organizations in Canada have differingcriteria about who qualifies as a Métis person.

NunavutThe territory created in the Canadian North onApril 1, 1999 when the former NorthwestTerritories was divided in two. Nunavut means

"our land" in Inuktitut. Inuit, whose ancestorsinhabited these lands for thousands of years,make up 85 percent of the population ofNunavut. The territory has its own public gov-ernment.

off-reserveA term used to describe people, services orobjects that are not part of a reserve, but relateto First Nations.

oral historyEvidence taken from the spoken words of peo-ple who have knowledge of past events andtraditions. This oral history is often recordedon tape and then put in writing. It is used inhistory books and to document land claims.

reserveA reserve is tract of land, the legal title towhich is held by the Crown, set apart for theuse and benefit of an Indian band. Somebands have more than one reserve. Many FirstNations now prefer the term "First Nationcommunity," and no longer use "reserve."

surrenderA formal agreement by which a band consentsto give up part or all of its rights and interestsin a reserve. Reserve lands can be surrenderedfor sale or for lease, on certain conditions.

tribeA tribe is a group of Native Americans sharinga common language and culture. The term isused frequently in the United States, but onlyin a few areas of Canada (e.g., the Blood Tribein Alberta).


Resolving Aboriginal Land Claims: Canadian Experience

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