ALGONQUIN NATION SECRETARIAT OVERVIEW OF COMPREHENSIVE CLAIMS IN CANADA

Presented By

Russell Diabo, Policy Advisor

July 2015

Overview of Presentation on Comprehensive Claims

Background to CCP/Aboriginal TitleLaw vs. PolicyUpdate on CCP/Eyford

Report (AFN/AFNQL)3 Classes of Aboriginal Title

First NationsAboriginal Title Alliance

Background to Comprehensive Claims Policy/Aboriginal Title

Background to CCP

The first time the Supreme Court of Canada (SCC) ruled on Aboriginal title in Canada was 42 years ago (1973), in the Calder case.

The Nisgaa Tribe lost the Calder case. The Court ruled in favor of Aboriginal title; but the

bench was split on whether Aboriginal title was extinguished three for, and three against

The 7th ruled against the Nisgaa on a technicality.

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1973 Statement of Policy

The federal government responded to the Calder decision by way of a statement of policy, issued by the then Minister of Indian Affairs, Jean Chretien.

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

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Evolution of CCP

Over the years, the 1973 statement of policy has undergone a number of changes, the biggest of which involved separating Comprehensive Claims and Specific Claims into discrete policies with additional definition.

The original statement on Comprehensive Claims was amended in 1981 when Canada released In All Fairness.

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CONSTITUTION ACT 1982

Constitution Act 1982On April 17, 1982, the Constitution Act

1982 became law. Section 35 of the new constitution

recognizes and affirms the existing aboriginal and treaty rights of aboriginal peoples.

A series of First Ministers Conferences were held in 1983, 1984, 1985 and 1987, to identify & define the scope and content of sec. 35, but these constitutional conferences ended in failure.

1983 Amended Section 35

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Mtis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Legal Tests for Aboriginal Rights & Title

Supreme Court of Canada:The Judges

SCC Aboriginal Rights Test

R. v Van Der Peet (1996)

The right must involve an activity that was a practice, tradition or custom [that] was a central and significant part of the [Aboriginal] societys distinctive nature.

The activity must have existed prior to contact with European settlers.

The activity, even if evolved into modern forms, must be one that continued to exist after 1982, when the Constitution Act was passed.

1997 Delgamuukw Decision

The Supreme Court concluded that Aboriginal title is a real property right, which enjoys constitutional recognition and protection via s.35 of the Constitution Act, 1982.

It held that, where Aboriginal title exists, and where it has been infringed, the Crown must justify its infringement and reconcile its assertion of Crown title with Aboriginal title. The Court identified two steps in the justification test: (1) claimant proves infringement; and (2) Crown proves justified with fiduciary duty.

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1997 Delgamuukw Decision

Justification Test consistent with fiduciary duty: Consultation Compensation - acknowledging the value

inherent in Aboriginal title lands and resources, the Court indicated that diminished rights would normally require valuable consideration.

Surrender/extinguishment of Aboriginal title - only required when extreme measures are proposed by the First Nation, ones which would sever the connection between future generations and the land.

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1997 Delgamuukw Decision on Aboriginal Title

In Delgamuukw, the Supreme Court of Canada elaborated on nature of Aboriginal title:

The right to exclusive use and occupation of the land.

The right to choose to what uses the land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples.

Lands held pursuant to Aboriginal title have an inescapable economic component.

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1997 Delgamuukw Decision (contd)

Reconciliation: In short, the Supreme Court of Canada has

recognized that Aboriginal title is a real property right, and that has a value. The Court has also recognized that other governments must justify any infringement of that property right, and reconcile the assertion of Crown title with the reality of Aboriginal title.

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2004 - Haida at Supreme Court of Canada

2014 - SCC Tsilhqotin Decision on Aboriginal Title

2014 Tsilhqotin Decision: Aboriginal Title

Summary re: Proof of Aboriginal Title. [50] The claimant group bears the onus of

establishing Aboriginal title. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms. In asking whether Aboriginal title is established, the general requirements are: (1) "sufficient occupation" of the land claimed to establish title at the time of assertion of European sovereignty; (2) continuity of occupation where present occupation is relied on; and (3) exclusive historic occupation.

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2014 Tsilhqotin Decision: Aboriginal Title vs. Land ClaimsRe-Affirms the principles & tests in

previous SCC decisions, including Delgamuukw and Haida decisions.

Sets out a framework for progressive recognition of Aboriginal Title from assertion to establishment.

Maintains Doctrine of Discovery in finding that the radical or underlying title to all the land acquired by Crown.

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FEDERAL INTERIM CCP/SECTION 35 POLICY

PM-AFN Meeting Jan. 11, 201323

Canada-AFN CC-SOC Process Two Senior Oversight Committees were

agreed to: 1) Historic Treaties and 2) Comprehensive Claims.

AFN withdrew from Historic Treaty SOC.Comprehensive Claims SOC was taken over

on AFN side by actively negotiating representatives and excluded non-negotiating representatives.

Both SOC processes ended in Dec. 2013. AFN-SCA didnt formally adopt CC-SOC Report by BC Vice-Chief.

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2014 Federal Interim CCP & Section 35 Policy

In September 2014, the federal Minister of Aboriginal Affairs, Bernard Valcourt issued an interim policy entitled Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights.

The interim policy is merely a restatement of previous federal section 35 policies regarding extinguishment of Aboriginal Title and municipalization of Indian Bands.

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FEDERAL CORE MANDATES= KEY GOALS/CLAUSES

Getting consent to the extinguishment (modification) of Aboriginal Title;

Getting consent on the legal release of Crown liability for past violations of Aboriginal Title & Rights;

Getting consent to the elimination of Indian Reserves by accepting lands as private property (fee simple);

Getting consent to removing on-reserve tax exemptions;

FEDERAL CORE MANDATES= KEY GOALS/CLAUSES

Getting consent to respect existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);

Getting consent to be assimilated into existing federal & provincial laws;

Getting consent to application of Canadian Charter of Rights & Freedoms over governance & institutions in all matters (individual vs. collective rights);

Getting consent to program funding on a formula basis being linked to own source revenue;

Extinguishment of Aboriginal Title Legal Techniques

certainty and finality;modified and released;

andNon-assertion of rights.

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Cash & Land

Cash & Land: The Comprehensive Claims Formula: $25,600 per head 9.3 Hectares (23 acres) per head

International Human Rights Bodies/Standards

UN Human Rights Committee Recommendations (1999)

The Committee recommends that the practice of extinguishing inherent Aboriginal rights be abandoned as incompatible with article 1 of the Covenant.

UN Human Rights Committee Recommendations (1999)The Committee endorses

the recommendations of the RCAP that policies which violate Aboriginal treaty obligations and extinguishment, conversion or giving up of Aboriginal rights and title should on no account be pursued by the State Party.

United Nations Declaration on the Rights of Indigenous

Peoples (2007)

Selected Articles of UNDRIP

Article 3 Right to Self-Determination. Article 10 No forced removal w/o FPIC. Article 19 FPIC required before

legislation/administration measures. Article 26 Rights to lands, territories, resources. Article 27 Fair process jointly developed to

adjudicate rights to lands, territories, resources. Article 32 FPIC required for and development

affecting lands, territories, resources. Article 37 Rights from Treaties, agreements,

constructive arrangements.

Eyford Report on Comprehensive Claims

PolicyReleased April 2, 2015

Eyford Report Ministerial Special Representative on

Comprehensive Claims Douglas Eyford

appointed Ministerial Special Representative in Sept. 2014.

Eyford Engagement process announced Sept. 2014.

Engagement Report with 47 Recommendations released on April 2, 2015.

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Douglas Eyford

EYFORD REPORT

14 Comprehensive land claims negotiations outside of British Columbia.8 Trans-boundary (NWT &

Nunavut) negotiation tables.53 Negotiation tables in the

British Columbia treaty process.

EYFORD REPORT

Most Recommendations deal with First Nations in negotiations or settlements under the CCP.Two Recommendations # 8

and #11 offer an alternative to CCP:

Eyford ReportAlternative to CCP

#8 Canada should continue its discussions with the Tsilhqot'in National Government about a range of bilateral or tripartite agreements outside the BC treaty process.

#11 Canada should develop an alternative approach for modern treaty negotiations, one informed by the recognition of existing Aboriginal rights, including title, in areas where Aboriginal title can be conclusively demonstrated.

Valcourts Generic Letter on Eyford Report of April 2, 2015

I encourage you to forward your input on Mr. Eyford'srecommendations to article35-section35@aadnc-aandc.gc.ca or through regular mail at:

Policy Development and Coordination BranchTreaties and Aboriginal Government SectorAANDC10 Wellington. 8th FloorGATINEAU QC K1A OH4

Aboriginal Affairs and Northern Development Canada officials will also be available for one-on-one meetings. Requests for such meetings can be made via the email address or through regular mail.

The Government of Canada will carefully consider this additional feedback, along with Mr. Eyford's recommendations, before making any decisions on how best to move forward.

AFN Rejection of Canadas CCP Reform Process

AFN Resolution #30/2015: THEREFORE BE IT RESOLVED that the Chiefs-in-Assembly: 1. Call on the federal government to dispense with processes that

aim to generate an optics of engagement, and rather, commence a dialogue with all First Nations about how a fundamental overhaul of the Comprehensive Claims Policy (CCP) can be jointly carried out with three classes of Aboriginal title First Nations First Nations that have entered in final comprehensive claims agreements, First Nations that were or have been in comprehensive claims negotiations, and First Nations that have never agreed to negotiate under the federal CCP to develop a new policy framework for implementing and addressing Treaty rights, First Nations inherent rights, title and jurisdiction, the Tsilhqotin Nation decision, as well as international legal norms, including the United Nations Declaration on the Rights of Indigenous Peoples. [Emphasis added]

First Nations with Modern Treaties

JBNQA

Post-JBNQA: Original 6 Actively Extinguishing

Groups in 1990Nishga Council for Yukon IndiansDene-MetisInuit Tapirisat of CanadaConseil Attikamek-MontagnaisLabador Inuit Association

Comprehensive Claims Settlements

First Nations Negotiating Under CCP

Comprehensive Land Claims & Self-Government Tables

Comprehensive Claims & Self-Government

Negotiations

First Nations in Negotiations Under CCP

BC Region

BCTC Negotiations

BCTC - 6 Stage Process to Termination Agreements

STAGE ONE: Statement of IntentSTAGE TWO: Preparation for NegotiationsSTAGE THREE: Negotiation of a

Framework AgreementSTAGE FOUR: Negotiation of an

Agreement-in-PrincipleSTAGE FIVE: Negotiation to Finalize a

TreatySTAGE SIX: Treaty Implementation

First Nations Summit Created by Federal & BC Legislation SUMMIT - means the body that is established to

represent the First Nations in British Columbia that agree to participate in the process provided for in the Agreement to facilitate the negotiation of treaties among first nations, Her Majesty in right of Canada and Her Majesty in right of British Columbia.

FIRST NATION - means an aboriginal governing body, however organized and established by aboriginal people within their traditional territory in British Columbia, that has been mandated by its constituents to enter into treaty negotiations on their behalf with Her Majesty in right of Canada and Her Majesty in right of British Columbia;

First Nations SummitTask Group

ED JOHN CHERYL CASIMER ROBERT PHILLIPS

CCP Negotiations Outside of BC

Atlantic RegionMi'kmaq of Prince Edward Island -

Comprehensive Land Claim with Self-Government - Exploratory Discussions.

Mi'kmaq of Nova Scotia - Comprehensive Land Claim with Self-Government -Agreement-in-Principle

Mi'kmaq & Maliseet of New Brunswick -Comprehensive Land Claim with Self-Government - Framework Agreement.

NOTE: These tables are categorized as comprehensive land claim negotiations because they have the dual focus of bringing clarity to Aboriginal rights and implementing the historic Peace and Friendship Treaties of 17601761. The negotiated agreements will honour historic treaty rights.

Quebec & Labrador Region Quebec Innu - Regroupement Petapan Inc. -

Comprehensive Land Claim with Self-Government - Final Agreement.

Atikamekw Nation Council - Comprehensive Land Claim with Self-Government - Agreement-in-Principle.

Mi'gmaq of Quebec - Comprehensive Land Claim with Self-Government - Agreement-in-Principle.

Maliseet of Viger First Nation - Comprehensive Land Claim with Self-Government - Exploratory Discussions.

Labrador Innu Nation Claim - Comprehensive Land Claim with Self-Government - Final Agreement.

NWT & Yukon Regions Acho Dene Koe/Fort Liard Metis - Comprehensive

Land Claim with Self-Government - Agreement-in-Principle.

Akaitcho Treaty 8 Dene - Comprehensive Land Claim with Self-Government - Agreement-in-Principle.

Dehcho First Nations - Comprehensive Land Claim with Self-Government - Agreement-in-Principle.

K'atlodeeche First Nation - Comprehensive Land Claim with Self-Government - Exploratory discussions.

Northwest Territory Mtis Nation - Comprehensive Land Claim Agreement with Self-Government -Agreement-in-Principle.

White River - Comprehensive Land Claim with Self-Government - Framework Agreement. (Yukon)

Algonquins of Ontario

Algonquins of Ontario Example of Whats Wrong with Policy

Essentially a land grab of the Eastern Ontario/National Capital Region, Parliament Hill, etc. by Crown govts.

Pikwakanagan (Golden Lake Band) asserted land claim in 1983 to Canada and again in 1985 to Ontario, without agreement from other Algonquin Nation bands.

Ontario accepted to negotiate first in 1991 then the federal government in 1992.

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Algonquins of Ontario (cont.)Algonquins of Ontario is a policy fiction

created by Ontario and federal governments.

The Algonquin Nation is not divided by the Ottawa River, which was a major travel route to and from Oka.

There are 10 federally recognized Algonquin communities 9 in Quebec and 1 in Ontario, 8,000-10,000 People.

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Algonquins of Ontario (cont.)

The federal approach to beneficiaries in the AOO claim gives standing to about 6,000-8,000 non-status individuals and 9 non-status groups who in many instances will likely not meet the legal requirements as title holders.

As a result the non-title holders are provided with an opportunity to extinguish Algonquin Title and Rights to territory over which other Algonquin First Nations assert Aboriginal Title & Rights.

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AOO AIP Highlights

Extinguishes Algonquin Aboriginal Title with no compensation for prior infringement (modify & release);

Non-Title Holders get section 35 status. Replaces Golden Lake Reserve with private

property (Fee Simple);Converts Pikwakanagan Indian Act Band Council

system into Municipal type government through a self-government agreement & Pikwakanagan gives up tax exemption/immunity & accepts OSR/funding levels;

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

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Algonquin Nation Territory circa 1850-1867

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Algonquins of Ontario Settlement Area

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Timiskaming-Wolf Lake-Eagle Village Asserted Aboriginal Rights/Title Area

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Trilateral Agreement Territory: Location

MITCHIKANIBIKOK INIK

Quebec

Trilateral AgreementTerritory

Rapid LakeCommunity

La VerendryeWildlife Reserve

Boundary

Traditional Management Areas

Algonquin Nation Secretariat Issues

Federal officials have refused to act on evidence presented in the SAR which demonstrates that within the Algonquin Nation Aboriginal title is held at the band/community level.

Canada has so far refused to engage seriously on this issue despite best efforts, and in fact continues to negotiate with the Algonquins of Ontario (AOO) over lands that are used and occupied by TFN-WLFN-EVFN and over which they assert Aboriginal Title.

Canada continues to be in breach of Agreements with ABL. Although Quebec is negotiating.

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Aboriginal Title Alliance

Aboriginal Title AllianceATA is (so far) a network of 5 Aboriginal

Title First Nations: Neskonlith Indian Band (in BC); Wolf Lake First Nation; Timiskaming First Nation; Eagle Village First Nation; Algonquins of Barriere Lake.

ATA made two UN interventions so far: Report to UN Special Rapporteur, James Anaya, on October 10, 2013; and Shadow Report to UN Human Rights Committee on Canada, on June 5, 2015.

CONCLUSION

Modernized Indian ActOmnibus Bills: C-38 & C-45 First Nations Financial Transparency Act Family Homes on Reserves and Matrimonial

Interests or Rights Act Safe Drinking Water for First Nations Act Indian Act Amendment and Replacement

Act First Nations Election Act First Nation Education Act (Pending) First Nation Private Property Ownership Act

(Pending)

Previous Effort at CCP Reform

Delgamuukw Implementation Strategic Committee Six point strategy:1. Public education,2. Political negotiation/pre-litigation

strategy,3. Litigation,4. Policy development,5. Direct action/exercise of Aboriginal

rights, and6. International campaign

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Conclusion

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

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ALGONQUIN NATION SECRETARIAT OVERVIEW OF COMPREHENSIVE CLAIMS IN CANADAOverview of Presentation on Comprehensive ClaimsBackground to Comprehensive Claims Policy/Aboriginal TitleBackground to CCP1973 Statement of PolicyEvolution of CCPCONSTITUTION ACT 1982Constitution Act 19821983 Amended Section 35Legal Tests for Aboriginal Rights & TitleSupreme Court of Canada:The JudgesSCC Aboriginal Rights TestR. v Van Der Peet (1996)1997 Delgamuukw Decision1997 Delgamuukw Decision1997 Delgamuukw Decision on Aboriginal Title1997 Delgamuukw Decision (contd)2004 - Haida at Supreme Court of Canada2014 - SCC Tsilhqotin Decision on Aboriginal Title2014 Tsilhqotin Decision: Aboriginal Title2014 Tsilhqotin Decision: Aboriginal Title vs. Land ClaimsFEDERAL INTERIM CCP/SECTION 35 POLICYPM-AFN Meeting Jan. 11, 2013Canada-AFN CC-SOC Process2014 Federal Interim CCP & Section 35 PolicyFEDERAL CORE MANDATES= KEY GOALS/CLAUSESFEDERAL CORE MANDATES= KEY GOALS/CLAUSESExtinguishment of Aboriginal Title Legal TechniquesCash & LandInternational Human Rights Bodies/Standards UN Human Rights Committee Recommendations (1999)UN Human Rights Committee Recommendations (1999)United Nations Declaration on the Rights of Indigenous Peoples (2007)Selected Articles of UNDRIPEyford Report on Comprehensive Claims PolicyEyford Report Ministerial Special Representative on Comprehensive ClaimsEYFORD REPORTEYFORD REPORTEyford ReportAlternative to CCPValcourts Generic Letter on Eyford Report of April 2, 2015AFN Rejection of Canadas CCP Reform ProcessFirst Nations with Modern TreatiesJBNQAPost-JBNQA: Original 6 Actively Extinguishing Groups in 1990Comprehensive Claims SettlementsSlide Number 46First Nations Negotiating Under CCPComprehensive Land Claims & Self-Government TablesComprehensive Claims & Self-Government NegotiationsFirst Nations in Negotiations Under CCPBC RegionBCTC NegotiationsBCTC - 6 Stage Process to Termination AgreementsFirst Nations Summit Created by Federal & BC LegislationFirst Nations SummitTask GroupCCP Negotiations Outside of BCAtlantic RegionQuebec & Labrador RegionNWT & Yukon RegionsAlgonquins of OntarioAlgonquins of Ontario Example of Whats Wrong with PolicyAlgonquins of Ontario (cont.)Algonquins of Ontario (cont.)AOO AIP HighlightsAlgonquin Nation Territory circa 1850-1867Algonquins of Ontario Settlement AreaTimiskaming-Wolf Lake-Eagle Village Asserted Aboriginal Rights/Title AreaTrilateral Agreement Territory: LocationTraditional Management AreasAlgonquin Nation Secretariat IssuesAboriginal Title AllianceAboriginal Title AllianceCONCLUSIONModernized Indian ActPrevious Effort at CCP ReformConclusion