MODERN TREATIES IMPLEMENTATION RESEARCH PROJECT Shaping the Northern political landscape: Comprehensive land claims agreements

Graham White

t is difficult to underestimate the importance of Typically, settlements entail financial compensation; the settled Northern comprehensive land claims rarely, if ever, do they involve governance matters. forI Indigenous Peoples and for governance generally. By contrast, comprehensive claims include financial This is not to say, as is evident from other articles compensation, land ownership, governance in this issue, that Northern Indigenous Peoples are provisions and other elements. anything like completely satisfied with how claims have worked out in practice or, indeed, that all Federal claims policy2 of them accept the basic premises underpinning The signing of Treaty 11 in 1921-2 marked the end comprehensive claims. Still, the provisions – of more than two centuries of treaty making between and the shortcomings – of the claims represent Indigenous Peoples and British and Canadian fundamentally important elements of political life in authorities. Two fundamental problems beset both the North. pre-Confederation treaties and the “numbered Two essential facts about comprehensive claims treaties” signed between 1871 and 1923. First, there agreements highlight their significance. First, the was a fundamental disagreement as to the nature of claims are – and are recognized as such by the the treaties. The Canadian government largely saw Government of – treaties. A treaty is no the treaties as land deals, by which the Indigenous run-of-the-mill government agreement, but rather Peoples gave up their lands and their autonomy a solemn, binding covenant between sovereign in return for specified benefits. By contrast, the entities; not for nothing do Indigenous Peoples Indigenous Peoples believed the treaties to be refer to treaties as sacred. Second, Section 35 of the peace and friendship agreements for sharing lands Constitution Act, 1982 proclaims that, along with and resources, entailing neither transfer of land other “Aboriginal and treaty rights,” Indigenous ownership to the Canadian state nor surrender rights under existing or future land claims of political sovereignty. In turn, this reflected the agreements are “recognized and affirmed.” Once oftentimes questionable processes characterizing settled, comprehensive land claims become part of treaty making, evident for example in substantial Canada’s constitutional framework. differences between the oral commitments made by This article offers an overview of the history the Canadian negotiators and the written texts of and nature of comprehensive land claims. To date, the treaties, which many Indigenous leaders could 26 such claims have been finalized; most are in not understand as they spoke and read little, if any, the North, and a handful are in southern British English (Fumoleau, 1973). Columbia. Others are being negotiated elsewhere Second, treaties were never signed over huge in southern Canada. Given space constraints, this swaths of Canada, including all of present-day account necessarily leaves out many important , Northern Quebec and Labrador, most details and nuances about claims and the claims of and and parts of the process. present-day NWT. The Indigenous Peoples in these Comprehensive claims are distinct from “specific regions were never conquered militarily, yet without claims.” Specific claims are designed to rectify even the semblance of a treaty relationship, the wrongs against First Nations relating to Canada’s Canadian state simply assumed control and pushed implementation of historical treaties. They could the original inhabitants to the margins socially and involve failure to provide promised financial and politically. This absence of treaties across much other benefits, inadequate protection of First Nations of Canada led to the development of the federal lands or other implementation improprieties. government’s comprehensive land claims policy. Hundreds of specific claims have been settled, Various Indigenous Peoples had been pushing with hundreds more under negotiation or pending. for many years for Canada to recognize their

Northern Public Affairs, November 2019 23 rights to their traditional territories and to self- only willing to negotiate six claims at a time. government, with little success. A major legal Widespread dissatisfaction – Indigenous leaders breakthrough occurred with the 1973 Calder case found the In All Fairness title ironic – led Conservative brought forward by the Nisga’a of Northwestern DIAND Minister David Crombie to establish a British Columbia. Although the Nisga’a lost, the task force, headed by Murray Coolican, charged justices of the Supreme Court of Canada recognized with examining the comprehensive claims policy. that to traditional Indigenous lands The “Coolican Report,” Living Treaties, Lasting once existed and several justices concluded that it Agreements, “recommended abandonment of cash still existed as “unextinguished Aboriginal title.” It and land deals, and a wholesale broadening of the is widely believed that the Calder case forced the land claims policy to allow for the negotiation of federal government to develop a comprehensive social, political and cultural issues. It recommended claims policy in anticipation of future legal also that land claims settlements affirm, rather than challenges. While Calder hastened Ottawa’s extinguish aboriginal rights” (Fenge & Barnaby, response, Christa Scholtz of McGill University has 1987, p.13). Ottawa’s revised policy, the 1986 shown through analysis of cabinet documents that Comprehensive Land Claims Policy (Minister the federal government was already well on the of Indian Affairs and Northern Development, way to establishing a formal policy for land claims 1986) offered some modification of the 1981 (Scholtz, 2006). policy, most notably, perhaps, the abandonment Federal comprehensive claims policy emerged of the requirement for blanket extinguishment of in tandem with the negotiation and 1975 settlement Aboriginal rights, but it stopped well short of the of the James Bay and Northern Quebec Agreement, Coolican Report principles. which was negotiated and finalized in record time, In 1995, the Liberal government’s recognition owing to the Quebec government’s need to ensure of “the inherent right to self-government” included that its massive James Bay hydro-electric project was willingness to entertain both self-government on sound legal ground. Many of the policy’s basic demands and land claims at the same negotiating provisions remain in place today, though, as outlined table. This fundamental shift opened the way for below, some have changed. As summarized in the very different claims processes and settlements, 1981 policy statement In All Fairness (Minister of exemplified in the Tłı̨chǫ Agreement and the Indian Affairs and Northern Development, 1981), Labrador Inuit Land Claims Agreement, both the federal government established and ensured of which include far-reaching self-government compliance with the claims process, including the provisions. basic decision as to whether an Indigenous claim Although federal claims policy is constantly should be accepted for negotiation. Among the under review, little of major significance has important elements of the policy was this: claims changed since the 1990s. A 2014 paper, Renewing were only to be entertained in areas not already the Comprehensive Land Claims Policy: subject to treaty, though an important exception Towards a Framework for Addressing Section 35 was made in the NWT where the implementation Aboriginal Rights (Aboriginal Affairs and Northern of Treaties 8 and 11 was judged to have been so Development, 2014, p.3) described as an “interim fundamentally flawed as to warrant negotiation of a policy,” put forward no substantial proposals for claim. A central objective for the federal government modifying either the process or the outcome of was certainty and finality as to jurisdiction over claims negotiations. lands; accordingly, extinguishment of Indigenous In January 2019, the Liberal government title became a central requirement for settling announced, without going into specifics, that it was claims. Ottawa refused to permit self-government working towards a sweeping revamp of policies on demands to be addressed in claims processes; both comprehensive claims and self-government, to be Indigenous and government negotiators have said in place by June 2019. Indigenous leaders, some of that this restriction shaped the nature of the early whom disparaged the plan as “White Paper 2.0,” finalized claims in important ways. Given the pushed back strongly, calling for an Indigenous-led exclusion of self-government concerns, the claims process. At an Assembly of First Nations forum in process focussed on land ownership and use, wildlife May, Crown-Indigenous Relations and Northern management and money; minimal attention was Affairs Minister Carolyn Bennett bowed to pressure paid to social issues such as education, health and and abandoned the plan. Officials, she said, were welfare. Citing limited capacity to manage the now working on “a ‘directive’ to guide federal complex processes involved, Ottawa was initially negotiators at dozens of tables discussing modern

24 Northern Public Affairs, November 2019 treaty and self-government agreements with First passage of enabling legislation in Parliament and Nations.” (Barrera, 2019) No timeline was specified. in the territorial or provincial legislature as well A change of great import was announced as a ratification vote by members of the claimant in the March 2019 federal budget. Prior to the group. More than one tentative agreement has been announcement, Indigenous claimant groups, derailed when ratification failed. typically heavily outgunned by Ottawa in terms of Summarizing the process in this way might expertise and financial wherewithal, were able to seem to imply a quick and straightforward process. pursue claims by virtue of loans from the federal The reality is far different. The James Bay and government. These loans, which often mounted Northern Quebec Agreement may have been settled into the millions, sometimes tens of millions, had in a remarkably short period of time, but many to be repaid out of claims compensation monies subsequent claims took two decades or more to come once the claims were finalized. At least one First to fruition, with many stops and starts along the way. Nation abandoned its claim at least in part because And some, such as the Labrador Innu claim, first put of its calculation that the loans it would need to forward in 1977 (though not accepted until 1991), repay exceeded the money it could expect from are still under negotiation. its claim. In a major policy reversal, the budget A finalized claim is a daunting document, promised to forgive existing loans and to return to running sometimes to hundreds of pages of dense claimant groups the value of loans they had paid legal language – which on occasion (often by design) off. Estimates were that this would amount to $1.4 lacks clarity on important issues. Critically important billion, including $938 million in fiscal 2018-19 are the accompanying implementation plans, which alone (Minister of Finance, 2019). set out in extensive detail which parties to the claim are responsible for fulfilling which provisions, funding Process levels, accountability mechanisms and the like. Most Some noteworthy changes have occurred in the cover the first decade of the claim; re-negotiation is claims process since the 1970s, such as Ottawa’s often fraught as the parties try to rectify what they acceptance in 1995 of self-government as an integral see as shortcomings and problems in the claims or element of claims negotiations; the enhancement of implementation contracts. Many older claims no the territorial governments’ role in the process, from longer operate under implementation contracts little more than observers to key partners; and the but instead have transitioned to non-binding recent announcement of loan forgiveness. In most implementation plans. respects, however, the process remains much as it What, then, do comprehensive claims entail? was when the claims policy was first enunciated. Most significant perhaps, is the federal Comprehensive claims – Common government’s continuing preeminent role in all provisions aspects of the process. In effect, Ottawa sets the rules Provisions of the finalized comprehensive land of the process and retains final decision-making claims across the North vary a good deal depending, power over proposed settlements. At the outset, the among other things, on the federal government’s federal government determines whether to even policy at the time, the objectives and priorities of accept a claim for negotiation; claimant groups are the Indigenous claimant groups and the particulars required to provide extensive information to Ottawa of the lands and governance issues subject to claims. on subjects such as use and occupancy of traditional Each settled claim has unique provisions, but lands. certain features are found in all claims. In return Once the federal government accepts a claim for for relinquishing Aboriginal title to their traditional negotiation, a framework agreement is developed, lands (but not other Aboriginal rights) to , setting out the basic issues and the process to claimant groups receive: be followed. As in other phases of the process, Ottawa, the claimant group, and the provincial or • Cash: Ottawa pays substantial amounts of money territorial government involved must all approve over a specific period ($1.14 billion over 14 years in the framework, though Ottawa is the dominant the case of the Nunavut claim) for the land, including player. Eventually, unless negotiations break for past usage. These monies are paid to the down, an agreement-in-principle (AIP), emerges. organization representing the claim beneficiaries and The AIP, which is not legally binding, forms the invested in trust funds and economic development basis for thrashing out formal language in a final projects. The interest generated is used to fund social, agreement. The tentative agreement requires the cultural and political activities.

Northern Public Affairs, November 2019 25 • Title to land: Ownership of specific parcels of land to its implementation responsibilities. Suffice it to is formally vested in the Aboriginal organization say here that proper implementation is necessary to (again, to be held in common for all beneficiaries). fulfill the promise of comprehensive land claims.Y Total land quantum ranges from about 15 per cent to nearly 30 per cent of the total “settlement area.” Graham White is Professor Emeritus of Political Science, A proportion of this land includes subsurface rights; University of Toronto. His book on co-management boards this is significant since land ownership in Canada in the three territories will be published in the Spring by the does not normally include rights to the subsurface. University of British Columbia Press. Specific lands are selected by the claimant group in negotiations with government, on the basis of Notes 1. For more detailed accounts a good source, with links to economic potential, cultural and spiritual importance, a wide range of documents and other materials, is the environmental sensitivity, and related factors. website of the Land Claims Agreements Coalition (www. landclaimscoalition.ca). See especially “Modern treaties • Access and harvesting rights: The rights of claim 101: A crash course.” See also Fenge (2015). 2. This section only considers a few highlights in the beneficiaries to travel on and to hunt and fish evolution of federal claims policy. For a more extensive throughout their traditional lands is affirmed, subject discussion, see Fenge, “Negotiation and implementation.” to conservation measures, safety issues and the like. 3. See Chapter 3: Indigenous land rights and cabinet decision-making in Canada (1945-1973). • Governance commitments: Early settled claims References typically included federal commitments to negotiate Barrera, J. (2019, May 2). Carolyn Bennett backs off wide-ranging self-government regimes and general policy changes to modern treaty and self-government frameworks for the negotiations. Since Ottawa processes. CBC News. Retrieved from https://www. agreed to negotiate self-government alongside land cbc.ca/news/indigenous/carolyn-bennett-rights-policy- directive-1.5120973 claims in 1995, some land claim agreements have Department of Aboriginal Affairs and Northern included extensive self-government provisions. Development Canada (2014). Renewing the Comprehensive Land Claims Policy: Towards a framework for addressing Section • Co-management boards: Each settled claim provides 35 Aboriginal rights. Ottawa. Department of Indian Affairs and Northern Development for the establishment of a suite of tri-partite boards, (1985). Task Force to Review Comprehensive Claims Policy, Living featuring guaranteed Indigenous participation, treaties, lasting agreements. Ottawa. dealing with wildlife, land-use planning and Fenge, T. (2015). Negotiation and implementation of environmental regulation. modern treaties between Aboriginal Peoples and the Crown in right of Canada. In T. Fenge and J. Aldridge (Eds.), Keeping promises: The Royal Proclamation of 1763, In addition, each claim includes a host of Aboriginal rights, and treaties in Canada (pp. 105-137). miscellaneous provisions and benefits, ranging Montreal and Kingston: McGill-Queen’s University Press. from royalty arrangements to preferential hiring Fenge, T., & and Barnaby, J. (1987). From recommendations to policy: Battling inertia to obtain a land claims policy. in government to guaranteed participation in the Northern Perspectives 15. creation and management of national parks. Fumoleau, R. (1973). As long as this land shall last: A history of Treaty 8 and Treaty 11, 1870-1939. Toronto: McClelland Implementation issues and Stewart. Scholtz, C. (2006). Negotiating claims: The emergence of For Indigenous Peoples, finalizing a comprehensive Indigenous land claim negotiation policies in Australia, Canada, land claim, though a long, arduous process, by New Zealand, and the United States. New York: Routledge, no means represents the end of the journey. 2006). Experience has shown that ensuring full and proper Minister of Finance (2019, March 19). Investing in the middle class: Budget 2019. Ottawa. implementation of claim provisions can be every Minister of Indian Affairs and Northern Development bit as difficult – and important – as settling claims. (1981). In all fairness: A native claims policy. Ottawa. Frustration with Ottawa’s implementation failures Minister of Indian Affairs and Northern Development led in 2003 to the creation of the Land Claims (1986). Comprehensive Land Claims Policy. Ottawa. Agreements Coalition, an organization that brings together many of the Indigenous governments and organizations with finalized claims to increase public awareness of land claims and to push the federal government on a range of implementation issues. Other contributions to this issue examine the challenges involved in ensuring that Ottawa lives up

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