For the first time in almost 30 years, the Government of Canada is renewing its comprehensive land claims policy. Released in September of this year, Canada is now seeking feedback on its interim policy, entitled Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights (the "Interim Policy").
This Interim Policy outlines Canada's current approach to treaty negotiations. Following the present engagement process, Canada is planning to integrate further updates before the final policy is released at an unknown date. The engagement process is headed by Douglas Eyford, in his role as Ministerial Special Representative.
The release of the Interim Policy follows the recent Supreme Court decision in Tsilhqot'in,1in which, for the first time in Canadian history, a declaration of Aboriginal title was made. The decision in Tsilhqot'in has been widely regarded as altering the landscape in relation to comprehensive land claims: the test for proving Aboriginal title – while still a significant task -- has been clarified and made easier to establish. In addition, the significant rights conferred by Aboriginal title have made the option of seeking to prove title all the more attractive to Aboriginal Nations. This has lead some commentators to speculate that pursuit of comprehensive land claims – which may offer less than a title claim -- may be less attractive to certain groups, absent new incentives and/or new approaches.
However, this Interim Policy largely summarizes what has already been the Federal Crown's practice in treaty negotiations in recent years, without reference to the current state of the law as reflected in Tsilhqot'in. Nor does the Interim Policy reference the principles laid out in the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP").2
Summary of the Interim Policy:
The negotiation process, as set out in the Interim Policy, can be briefly summarized as follows:
- The need to create predictability is addressed by requiring 'certainty clauses' which prohibits any exercise or claim of a s. 35 right outside of the parameters of the treaty, whether it is related to land or other types of rights, such as the right to self-governance. Certainty provisions are the modern equivalent of the 'extinguishment' or "cede, release and surrender" clauses from earlier treaties.
- Lands will generally be divided between Treaty Settlement Lands, which include secure title, and other territories, where various treaty rights are exercisable.
- Canada considers the resolution of shared and overlapping interests in land as key and may have to be addressed prior to final treaty.
- For natural resources under Federal authority, Canada is prepared to negotiate revenue sharing arrangements, within predetermined limits, and Canada will not negotiate joint management boards of such resources.
- Within its jurisdiction, Canada will consider the creation of advisory boards, or participation by Aboriginal nations on decision-making boards for wildlife, water or land management.
- Capital transfers may be part of a treaty settlement, and may be reduced in accordance with revenue sharing arrangements.
- A Framework Agreement is the first document to be negotiated, outlining the parameters for negotiation, followed by an Agreement-in-Principle, and culminates with the Final Agreement, which must be ratified by the members of the Aboriginal Nation. Legislation will give effect to the agreements reached.
Other issues are also dealt with in the Interim Policy, including taxation, membership, dispute resolution, third-party interests and the negotiation of non-treaty arrangements.
The Interim Policy does not affect Canada's 1995 Inherent Right Policy, which addresses the negotiation of self-governance arrangements.
Limits of the Interim Policy:
The Interim Policy is to be updated following the feedback received through Mr. Eyford's engagement process.
At this stage, some of the concerns that have been raised in relation to the Interim Policy include the following:
- The lack of recognition of the state of the law as reflected in the Tsihlqot'in decision and in UNDRIP.
- Concern that the policy serve as a guide and not as a unilateral and non-negotiable limit to negotiations. Some have suggested that coming to the table with a pre-determined strict limit on numerous key negotiation issues is inconsistent with the principles of reconciliation and the honour of the Crown.
- The need for Indigenous laws and decision-making authorities to be reflected in treaty negotiations.
- The lack of recognition of consent-based decision-making. In this regard, the Supreme Court has recognized that the Crown should attempt to seek consent for development that would infringe upon certain Aboriginal rights.3 This is particularly true for infringements upon lands that are subject to strong Aboriginal title claims.4 A similar need to seek consent is set out in UNDRIP. However, there is no place for consent-based decision making in the Interim Policy. As but one example, the Interim Policy only provides for an advisory role or limited participation for Aboriginal nations on environmental management issues.
- The need to jump-start the treaty-making process. The current treaty negotiation process is slow and expensive for Aboriginal nations. This reality, coupled with the strict limits within which Canada often negotiates, pushes parties away from the negotiation table and towards the Courts, which is also expensive, has uncertain outcomes and further fractures the relationship with the Crown. The final policy should seriously address ways to make the process faster and less expensive. This will also include ensuring that Crown negotiators have the proper mandates to make the decisions required to move forward negotiations.
- Finally, overlapping claims exist across Canada. Better methods to address these claims are necessary and should not unduly slow down treaty settlement.
All parties involved agree that an updated approach to treaty negotiations is needed in order to make the process more efficient, fair and to properly reconcile Crown sovereignty with the pre-existing rights of Aboriginal peoples. Moving forward, Mr. Eyford will also have to consider ways to ensure that the final policy reflects the present state of the law, and the on-the-ground difficulties with the treaty negotiation process experienced by Aboriginal nations. In 2009, the Inter-American Commission on Human Rights found that there are no effective domestic remedies for Aboriginal peoples seeking a resolution to their claims for Aboriginal title.5 This is extremely worrisome, and Canada should address the concerns raised by this report when redefining the treaty negotiation process. As we look forward, we hope that the final policy that Canada puts forward for its comprehensive land claim negotiations can move beyond the Interim Policy, so that timely and good faith negotiations can advance, for the benefit of all involved.
1 Tsilhqot'in Nation v. British Columbia, 2014 SCC 44.
2 UNDRIP was endorsed by Canada in 2012, although with objections about the requirement to obtain the free, prior and informed consent of Indigenous peoples for development of their territory.
3 Delgamuukw v. British Columbia,  3 S.C.R. 1010 at para 168; and Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511 at para 48.
4 Tsilhqot'in at para 76 and 90
5 Report No 105/09, Petition 592-07 , Admissibility Hul'Qumi'Num Treaty Group, Canada, Oct. 30, 2009, Inter-American Commission on Human Rights Organization of American States
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