Overview CCP-IRP & Liberal Promises Jan 2016 FINAL

OVERVIEW OF COMPREHENSIVE CLAIMS, SELF-GOVERNMENT & LIBERAL PROMISES

Presented By

Russell Diabo, First Nations Policy Consultant

January 2016

Overview of Presentation on Comprehensive Claims/Self-Government/Liberal Promises

Background to CCP/Aboriginal Title

Law vs. PolicyUpdate on CCP/Eyford

Report (AFN/AFNQL)UN Human Rights/UNDRIPLiberal 2015 Promises

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 Nisga’a 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 Nisga’a 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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Grounds for a Specific Claim A First Nation may submit a claim seeking

compensation for its losses based on any of the following grounds:

a) a failure to fulfil a legal obligation of the Crown* to provide lands or other assets under a treaty or another agreement between the First Nation and the Crown*;

b) a breach of a legal obligation of the Crown* under the Indian Act or any other legislation –pertaining to Indians or lands reserved for Indians – of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada;

Grounds for a Specific Claim

c) a breach of a legal obligation arising from the Crown’s* provision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation;

d) an illegal lease or disposition by the Crown* of reserve lands;

e) a failure to provide adequate compensation for reserve lands taken or damaged by the Crown* or any of its agencies under legal authority; or

f) fraud by employees or agents of the Crown* in connection with the acquisition, leasing or disposition of reserve lands.

Specific Claims Over $150 Million

Claims valued over $150 million require the Minister to obtain a discrete mandate prior to being accepted for negotiation. “Claims over $150 million” is not a new class or category of claim. These claims are still specific claims as defined in the Specific Claims Policy.

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 Métis 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] society’s 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 (cont”d)

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 Tsilhqot’in Decision on Aboriginal Title

2014 Tsilhqot’in 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 Tsilhqot’in 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, 201326

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 didn’t 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.

Valcourt’s Generic Letter on Eyford Report of April 2, 2015

I encourage you to forward your input on Mr. Eyford'srecommendations to [email protected] 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.

Develop a Federal Comprehensive Land Claims Policy Based on the Full

Recognition of Aboriginal Title AFN SCA Resolution #47/2015: THEREFORE BE IT RESOLVED that the Chiefs-in-Assembly:

1. Call upon the Government of Canada, on a Nation-to-Nation basis, in direct consultation with Aboriginal Title First Nations, to undertake a process to replace the federal Comprehensive Claims Policy (CCP) with a policy that recognizes and respects Aboriginal Title and Rights in accordance with Canada's Constitutional obligations, the Tsilhqot'in Nation decision, and consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

Develop a Federal Comprehensive Land Claims Policy Based on the Full

Recognition of Aboriginal Title

2. Call on the Government of Canada to forgive all outstanding loans incurred by First Nations as a result of negotiating under the federal CCP.

3. Call on the Government of Canada to exclude all areas that are subject to overlapping Aboriginal Title and Rights claims from Comprehensive Land Claims Agreement-in-Principle negotiations and to assist, where possible, and when requested by First Nations, the negotiation of shared territory agreements between First Nations.

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 1760–1761. 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 Métis 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 What’s Wrong with Policy

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

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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Liberal Aboriginal Platform

Commitments2015 Election

Justin Trudeau’s 2015 Commitments

During the election campaign, the platform commitments (including the Liberal Party of Canada’s October 8, 2015, response to the BC First Nations Leadership Council) stated that a Liberal government will:

Immediately re-engage in a renewed nation-to-nation process with Indigenous Peoples to make progress on the issues most important to First Nations. . .

Prioritize developing—in full partnership with First Nations—a Federal Reconciliation Framework. This framework will include mechanisms to advance and strengthen self-government, address outstanding land claims, and resolve grievances with both existing historical treaties and modern land-claims agreements.

Justin Trudeau’s 2015 Commitments

Enact the 94 recommendations of the Truth and Reconciliation Commission, including the adoption of the United Nations Declaration on the Rights of Indigenous Peoples.

Recognize and respect Aboriginal title and rights in accordance with Canada’s Constitutional obligations, and further those enshrined in the UN Declaration on the Rights of Indigenous Peoples.

Immediately lift the two percent cap on funding for First Nations programs, and establish a new fiscal relationship with First Nations – one that provides them with sufficient, predictable, and sustained funding to support the priorities of First Nations communities.

Justin Trudeau’s 2015 Commitments

The Liberal Party of Canada has endorsed the recommendations in the Eyford report in their entirety and is committed to working in partnership with First Nations to fully implement them. We will look to First Nations’ leadership for guidance when making decisions on where investments should be made.

Undertake a full review of regulatory law, policies, and operational practices, in full partnership and consultation with First Nations to ensure that the Crown is fully executing its consultation, accommodation, and consent obligations, including on resource development and energy infrastructure project reviews and assessments, in accordance with our constitutional and international human rights obligations

CONCLUSION

Trudeau’s 5 Point Plan (Priorities)

Launch a national public inquiry into missing and murdered indigenous women.

Make significant investments in First Nations education.

Lift the two per cent cap on funding for First Nations programs.

Implement all 94 recommendations from the Truth and Reconciliation Commission.

Repeal all legislation unilaterally imposed on indigenous people by the previous government.

Conclusion

What will the Trudeau government do about land claims, historic Treaties and self-government policies?

How will Trudeau government interpret section 35 rights?

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