Land Claims
The goal for land claim negotiations as part of the treaty process is to provide jurisdiction over land and resources; a treaty will determine the rights and obligations of the parties and resolve land ownership questions. At the core of the process are negotiations between Aboriginal groups and the federal government, and in some cases the provincial and territorial governments and other third parties. The process is formally based on legal concepts such as land title, Aboriginal rights and treaties, and is intended to make economic and social adjustments between two different societies.
Royal Proclamation, Map
Historical Basis, 1763-1969
The ROYAL PROCLAMATION OF 1763 reserved an unspecified area of what is now Canada for the use of Aboriginal people, and forbade any unauthorized purchase or possession of those lands by non-Aboriginal settlers. The British government, followed after 1867 by successive Canadian governments, concluded treaties with various groups of Aboriginal people to legitimate European settlement in their lands.
The gradual occupation of Canada by immigrants, with or without treaties, has continued for 400 years and has made the Aboriginal people a small minority within an industrial nation. In some cases Aboriginal bands that had concluded treaties have lost control of reserve lands, and in others the reserve lands promised according to treaty were not requested or allocated (see INDIAN RESERVES). Aboriginal people, many of whom had been nomadic, often found themselves isolated on reserves with little or no access to wildlife and no money, skill or natural resources to make a living from their reserves. For those Aboriginal people, Inuit and Métis who did not sign treaties or take reserve land, the impact of being surrounded or overrun by agriculture, industry, cities and "foreign" institutions has been similar to the impact of those who were part of a treaty. They have suffered the shock of great change in virtually every aspect of their lives and in their homelands.
Development of the Claims Process
Although Aboriginal people have from the beginning struggled to maintain their identity, the "movement" for Aboriginal rights and claims which began for a few bands in the 19th century did not become prominent until the 1960s. Many factors contributed to the expression of Aboriginal aspirations. Minority rights of all kinds and concern for the environment became worldwide causes. The search for minerals, new sources of oil, gas and hydroelectricity brought the Aboriginal people of the NORTH into the mainstream of Canadian life. At the same time, although an imposed education system threatened Aboriginal languages and cultures, it also prepared young Aboriginal people to enter and challenge the "White man's" political and legal system (see NATIVE PEOPLE, POLITICAL ORGANIZATION AND ACTIVISM).
Canada has been influenced by the treatment of claims and Aboriginal rights in other countries. In 1946 the US government created an Indian Claims Commission and in 1971 legislated the Alaska Native Claims Settlement. Australia passed an Aboriginal Land Rights Act in 1976, and in 1980 Denmark granted home rule to Greenland. Proposals to establish a body similar to the US Indian Claims Commission in Canada resulted in the drafting of two bills, in 1963 and 1965, which proved unsatisfactory to the Aboriginal people and were never enacted. In 1969 the federal government appointed Lloyd Barber as commissioner of Aboriginal claims to determine and recommend appropriate means of resolving native claims. Early in the 1970s the government set up a system of research funding for Aboriginal political and cultural associations to enable them to document and organize their land claims.
In 1972 the Aboriginal people of Old Crow in the Yukon Territory presented a petition to Parliament concerning oil and gas exploration on their hunting grounds. In the CALDER CASE in 1973 the Supreme Court of Canada split three to three in recognizing the Aboriginal land title of the Nisga'a of British Columbia, and in the same year the Yukon Indian Brotherhood presented a formal claim to the federal government.
In 1973 Justice Morrow of the NWT recognized the Aboriginal title of the Dene of the Mackenzie River Valley (see DENE NATION) and in 1973 Justice Malouf of Québec recognized the title of the CREE and Inuit of Québec. These decisions were later appealed and overturned, but they gave important weight to the Aboriginal cause.
In 2000, the Nisga'a Final Agreement, governing the Nisga'a Aboriginal rights, came into effect.
The Process
On 8 August 1973 the federal government, wishing to clear the way for industrial development of the North and to improve the position of Aboriginal peoples in Canada, announced a new policy for the settlement of Aboriginal claims. The policy confirmed the responsibility of government to meet its lawful obligations through fulfilment of the terms of the treaties and to negotiate settlements with Aboriginal groups in those areas of Canada where Aboriginal rights based on traditional use and occupancy of the land had not been dealt with by treaty or superseded by law. The policy emphasized that the co-operation of provincial and territorial governments would be required.
In order to carry out the new policy, an Office of Native Claims was created in 1974 within the Department of ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT (AAND). Under the leadership of an assistant deputy minister, negotiators, lawyers and researchers dealt with two main types of claim: specific and comprehensive. Specific claims are based on problems arising from the administration of treaties, the INDIAN ACT, First Nations funds and disposition of land. Although negotiation is the preferred course of action to settle these claims, settlement may also be reached by administrative remedy or court action. Specific claims are usually made by Aboriginal groups living in the provinces, as opposed to the territories, and most settlements consist of compensation and land (sometimes land only). Comprehensive claims are based on the traditional use and occupancy of land by Aboriginal people, Métis or Inuit who did not sign treaties and were not displaced from their lands by war or other means. These claims, which are settled by negotiation, involve the two territories and the northern parts of some provinces. The areas of land and the numbers of Aboriginal people involved are usually greater than in the case of specific claims. Settlement of these claims comprises a variety of terms including money, land, forms of local government, rights to wildlife, rights protecting Aboriginal language and culture and joint management of lands and resources.
The federal government provides funding in the form of contributions to Aboriginal associations for the research and presentation of their claims. Once claims are submitted, lawyers of the Department of Justice and officials of AAND determine the acceptability of each claim. Upon acceptance, further funding is provided to the associations for research and for negotiation. These loans must be repaid from the proceeds of the eventual settlements.
Evolution of the Process, Conflict and Concord
During more than two decades of negotiation of Aboriginal land claims in Canada, the system has responded to national and international changes in communications, economics, value-systems and politics. The implementation of settled claims-agreements has provided a basis for improvement and revision, and a number of confrontations. The most significant of the land-claim confrontations was the Oka, Québec, crisis of summer 1990 when a long-standing dispute over land ownership, tensions within the Mohawk community and ethnic tensions combined in an eruption that included blockades, the shooting death of a provincial police officer, a standoff between Mohawk Warriors and Canadian soldiers, and violence and destruction by civilians on both sides. The affair attracted international attention.
On 31 May 1991 the Commons Standing Committee on Aboriginal Affairs produced a report on the events, with recommendations that were subsequently incorporated into federal claims policy. The major issues affecting the Mohawks of Kanesatake and Kahnawake, however, are under discussion.
In November 1994, after years of tension, the First Nations of Penticton, Upper and Lower Similkameen, BC, erected a barrier across a road leading to the Apex Ski Resort in order to halt expansion of commercial activity on lands claimed as traditional territory. This action touched off a series of failed negotiations, legal suits and applications for injunction among the First Nations, the provincial government and the resort company. The Supreme Court of BC granted an injunction guaranteeing public access to the resort but the overall issues of access and land-ownership have yet to be resolved.
During the summer of 1995 a dispute arose between a rancher in the Gustafsen Lake region of BC and a small group of Aboriginal people and their sympathizers over the use and occupancy of ranchland for the conduct of the SUN DANCE ceremony. When dissidents threatened to use firearms RCMP were called in by the province. After a standoff of several days, with shots fired by both sides but no casualties, the dissidents surrendered. The First Nations of the area did not recognize or support the protesters and the matter was treated under the provincial Criminal Code.
The Kettle Point and Stony Point CHIPEWYAN of Ontario sought for years to retrieve lands that were taken to establish the military base of Camp Ipperwash. In 1995 a demonstration by First Nation members over a gravesite resulted in police action and the shooting death of a demonstrator. On 16 Jan 1996 the Minister of AAND announced the appointment of a federal negotiator, and the intention of the government to settle all issues and make amends for the wrongful taking of the Stony Point lands.
During these years of confrontation Aboriginal people and governments, in commissions, inquiries and meetings, examined all aspects of the situation of Aboriginal people in Canada and some agreements were revised or expanded.
In 1980 the federal government appointed the first chief negotiator from outside the public service to assure greater neutrality and access to Ministers. The Office of Native Claims was abolished in 1986 and replaced by several specialized units of the Department - including one to oversee the implementation of agreements. New federal policy papers were published in 1987, 1991 and 1996, and both provincial and territorial governments created their own administrative structures for claims and Aboriginal affairs. By 1982 the Canadian Constitution was amended to confirm Aboriginal rights, including those identified in claims settlements. Formulas were found to solve the impasse over "extinguishment" of Aboriginal rights vis-à-vis the need of government for finality of agreements.
In BC, where comprehensive claims are numerous, a treaty commission process was developed for the preparation and negotiation of claims. The federal government is acting upon the Aboriginal inherent right to self-government (see ABORIGINAL SELF-GOVERNMENT), both within and outside the claims process.
Progress of Comprehensive Claims
By March 1996, 746 specific claims, including those for treaty entitlement (mostly in the Prairie Provinces), had been received by government. Of those, 151 had been settled by negotiation, 40 settled by litigation and 95 were being negotiated. Two hundred and eighty-six were under review; files were closed on 98 and 76 were rejected.
Between 1973 and 1994 the federal government settled thirteen comprehensive claims including,
• James Bay and Northern Quebec Agreement (1975);
• Northeastern Quebec Agreement (1978);
• Inuvialuit Final Agreement, western Arctic (1984);
• Gwich'in Agreement, northwestern portion of the Northwest Territories and 1,554 square kilometres of land in the Yukon (1992);
• Nunavut Land Claims Agreement, Inuit of the eastern Arctic (1993);
• Seven Yukon First Nation Final Agreements, based on the Council for Yukon Indians Umbrella Final Agreement (1993); and
• Sahtu Dene and Metis Agreement, Mackenzie Valley, Northwest Territories (1994).
Northern Canada Claims
The JAMES BAY AND NORTHERN QUÉBEC AGREEMENT (JBNQA) of 1975 was negotiated and settled largely in response to the threat of hydroelectrical development. It was signed by the Cree and Inuit after only two years of negotiation - far less than any subsequent process. The Naskapis of Northeastern Québec joined the negotiations during the later stages and signed a companion agreement in 1978.
In the Northwest Territories the Inuvialuit of the Mackenzie Delta broke away from their original alliance with other Inuit of the Territory and signed a Final Agreement in 1984. The Inuit of the central and eastern NWT concluded their NUNAVUT Agreement in 1993, and a political accord providing for the new Territory of Nunavut that was negotiated concurrently with the land claim. Negotiators for the Dene and Métis of the NWT concluded an agreement in principle but in 1990 a general assembly of Dene and Métis voted not to ratify the agreement. Their alliance divided into five groups, each of which has pursued its own settlement with government.
In 1992 the Gwich'in of the Upper Mackenzie Delta signed a Final (comprehensive) Agreement, followed in 1994 by the Final Agreement of the Sahtu Dene and Métis of the Great Bear Lake region. The Dogrib people of the Great Slave Lake region negotiated a settlement that recognized aspects of Treaty No. 8.
At that time, Treaty No.8 became the largest land claim settlement the Canadian Government had ever established. The Yellowknife B Band (formerly the Dogrib when they signed Treaty No. 8) was renamed the Yellowknives Dene First Nation in the 1990s.
The 1975 JBNQA provided $168.8 million for the Cree and $91 million for the Inuit) as well as a land, an environmental and social protection system, and an income security program for hunters and trappers. In 1984 Cree-Naskapi (of Québec) Act and the Act respecting Northern Villages and Kativik Regional Government (Government of Québec) established a form of self-government for the Cree and the Inuit. By 2012, there were 22 complementary agreements amending the JBNQA.
In the Yukon Territory the Council for Yukon Indians (now the Council of Yukon First Nations) representing 10 First Nations ended 20 years of negotiation with an Umbrella Agreement in 1993. Later that year the Vuntut Gwitchin, the Nacho Nyak Dun, the Champagne-and-Aisihik and the Tlingit Tribal Council each concluded Final and Self-Government agreements. In 1997, final and self-government agreements were signed with Little Salmon/Carmacks (LSCFN) and Selkirk First Nations (SFN).
British Columbia Claims
The Royal Proclamation of 1763 ruled that BC First Nations should not be disturbed in their use and enjoyment of the land and that only process by which the Crown could acquire land from First Nations was through treaty-making: the Royal Proclamation established a process based on cooperation rather than conquest. In 1993, the federal and provincial governments and First Nations representatives established the the BC Treaty Commission to establish a treaty process referred to as "the keeper of the process."
Negotiations within the BC Treaty Commission Process resulted in the provincial ratification of a treaty with the Nisga'a Tribal Council in 1999. Upon passage of federal legislation in 2000 when Parliament passed the Nisga'a Final Agreement Act, the treaty became the first modern-day treaty in BC and the fourteenth modern treaty in Canada to be negotiated from 1976-2000. The Nisga'a treaty includes the right to self-government and the authority to manage their lands and resources.
Several other BC Aboriginal groups continue negotiations of their claims. In 2012 there were 60 First Nations, including approximately two-thirds of all First Nations people in BC, involved in the treaty negotiations process.
The BC treaty process, open to all BC First Nations, was negotiating 49 claims. BC treaty negotiations are arguably the most complex set of negotiations Canada has ever undertaken and the most complex treaty negotiations ever undertaken in the world.
Eastern Canada
In 1983 the Algonquins of Golden Lake (now known as the Algonquins of Pikwàkanagàn) submitted a comprehensive claim to the federal government, then in 1985 to the Ontario provincial government, and claim negotiations began in 1991. The claim was associated with a series of petitions presented to the Crown since 1772 and contends the Algonquin rights and almost nine million acres of land were never ceded through treaty or sold.
In 1994 the three parties agreed to a common Statement of Shared Objectives. The agreement was re-affirmed in 2006 and a renewed Framework for Negotiations Agreement was signed in 2009 by the three parties. The Atikamekw and Montagnais of Québec and Labrador, and the Inuit of Québec (Makivak Corporation) are also negotiating claims to the offshore in Québec and Labrador. The Labrador Inuit Association and the Innu Nation of central Labrador and northern Québec have each signed framework agreements to guide impending negotiations with government.
Other Related Claims
The Eeyou Marine Region Land Claims Agreement comprises the claims of the Cree of Eeyou Istchee. The oceans and waterways in the region continue to be used in traditional ways by the Crees for hunting sea mammals and waterfowl, and fishing. Located in northwestern Québec and the islands in James and Hudson Bay almost all the Aboriginal people reside in five communities on the coast of James Bay, southern Hudson Bay, and four inland communities.
In 2003 the Nunavik Inuit and the Crees signed an agreement covering the region from the La Grande River north to Long Island in Hudson Bay and northeast along the Hudson Bay coast that was traditionally Cree territory. The agreement between the Crees and the Inuit integrated both the Nunavik Inuit Land Claims Agreement (NILCA) and the Eeyou Marine Region Land Claims Agreement. Ownership of Nunavut land and resources in James Bay, Hudson Bay, Hudson Strait and Ungava Bay, as well as part of northern Labrador was addressed by the NILCA which became effective in 2006. The NILCA overlaps the agreements between the Nunavik Inuit and each of three other Aboriginal groups in the region: the Nunavut Inuit, the Crees of Eeyou Istchee and the Labrador Inuit. In 2009, all parties accepted the Final Agreement, and in the 2010 vote, almost 71% of all the Cree across northern Québec endorsed the Eeyou Marine Region Land Claims Agreement.
Modern treaties are built upon existing treaties, such as Treaty 8 and Treaty 11, by negotiating land claims and self-government agreements rather than changing or displacing the original treaties. Two groups of NWT and Métis are negotiating settlements based on Aboriginal and treaty rights rather than using the comprehensive claim process. The federal government negotiates with the NWT Métis differently than in the rest of Canada. Many NWT communities have blended populations of First Nations and Métis people therefore their interests are negotiated collectively. Negotiations with the Dene and Métis began in 1981 however an agreement was never ratified. Individual Nations began to negotiate with federal and territorial governments and the Gwich'in land claim was settled in 1992, followed by the Sahtu Dene & Métis Comprehensive Land Claim in 1994 and the land claim and self-government Tlicho Agreement with the four Dogrib Treaty 11 communities in the North Slave region in 2003.
The Deh-cho First Nations Tribal Council represents ten NWT First Nations and Métis people.group In 1999 the Dehcho Process began negotiations on a Framework Agreement followed by an Interim Measures Agreement (IMA) which was signed in 2001. The Framework Agreement was built upon existing treaties to conserve and promote the cultural and economic wellbeing of the Aboriginal members and communities in the Dehcho territory.
The Akaitcho Dene of the South Slave region entered into a Treaty Land Entitlement process rather than a comprehensive claim, however because the Métis were not included in the original Treaty, they could not participate in the Akaitcho Dene process. In 1996, the South Slave Métis Tribal Council (now the Northwest Territory Métis Nation) signed a Framework Agreement to negotiate land and resources.
The Lubicon Lake Cree Band live within the territory covered by Treaty 8 that was signed in 1899, however the Lubicon did not sign the treaty at that time. A federal negotiator was appointed to discuss the Lubicon Lake Cree's long-standing claim and grievances with Alberta provincial representatives.
Shaping History: The Significance of Land Claim Settlements
The scope, scale and potential of the Canadian settlement of claims is unique in world history, and though the process is far from complete there is a promise of a significant positive effect on Canada and perhaps beyond. Comprehensive and specific claims affect most of Canada, and in the case of comprehensive settlements, the combination of land ownership (including some subsurface), compensation funds, specific rights and programs, provisions for joint administration and self-government make the beneficiaries a potentially potent force in the national economy, society and politics.
The Tlicho (formerly Dogrib) and the NWT government negotiated the first agreement in the NWT to combine a land claim and self-government. The Tlicho Agreement, which came into effect in 2005, established a distinction between Aboriginal land rights and non-land rights. The agreement clarified that finality is achieved for land rights while clarity and predictability is achieved for non-land rights.
Author KEITH CROWE Revised: ANNE-MARIE PEDERSEN
Suggested Reading
A New Partnership: Canada and Aboriginal Peoples, Report of A.C. Hamilton to Minister of IAND (1995); K.J. Crowe, A History of the Original Peoples of Northern Canada (rev 1993); Letha MacLachlan, "Comprehensive Aboriginal Claims in the NWT," Information North XVIII (1992).
Links to Other Sites
Historica-Dominion Institute
The website for the Historica-Dominion Institute, parent organization of The Canadian Encyclopedia and the Encyclopedia of Music in Canada. Check out their extensive online feature about the War of 1812, the "Heritage Minutes" video collection, and many other interactive resources concerning Canadian history, culture, and heritage.
Canadian Aboriginal Writing and Arts Challenge
The website for the Canadian Aboriginal Writing and Arts Challenge, which features Canada's largest essay writing competition for Aboriginal youth (ages 14-29) and a companion program for those who prefer to work through painting, drawing and photography. See their guidelines, teacher resources, profiles of winners, and more. From the Historica-Dominion Institute.
The Making of Treaty 8 in Canada's Northwest
This site, which features poignant oral histories and archival material, commemorates the signing of Treaty 8 in the 19th Century and considers the complex issues relating to past, present, and future First Nations treaty negotiations in Canada. From the Virtual Museum of Canada.
Council of Yukon First Nations
Council of Yukon First Nations offers an overview of the history, culture, and current organization of First Nations populations and communities in the region.
The story of the founding of Montreal is perhaps unique in history....
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