Shaping the Northern political landscape: Comprehensive land claims agreements

Graham White

It is difficult to underestimate the importance of the settled Northern comprehensive land claims for Indigenous Peoples and for governance generally. This is not to say, as is evident from other articles in this issue, that Northern Indigenous Peoples are anything like completely satisfied with how claims have worked out in practice or, indeed, that all of them accept the basic premises underpinning comprehensive claims. Still, the provisions – and the shortcomings – of the claims represent fundamentally important elements of political life in the North.

Two essential facts about comprehensive claims agreements highlight their significance. First, the claims are – and are recognized as such by the Government of Canada – treaties. A treaty is no run-of-the-mill government agreement, but rather a solemn, binding covenant between sovereign entities; not for nothing do Indigenous Peoples refer to treaties as sacred. Second, Section 35 of the Constitution Act, 1982 proclaims that, along with other “Aboriginal and treaty rights,” Indigenous rights under existing or future land claims agreements are “recognized and affirmed.” Once settled, comprehensive land claims become part of Canada’s constitutional framework.

This article offers an overview of the history and nature of comprehensive land claims. To date, 26 such claims have been finalized; most are in the North, and a handful are in southern British Columbia. Others are being negotiated elsewhere in southern Canada. Given space constraints, this account necessarily leaves out many important details and nuances about claims and the claims process.

Comprehensive claims are distinct from “specific claims.” Specific claims are designed to rectify wrongs against First Nations relating to Canada’s implementation of historical treaties. They could involve failure to provide promised financial and other benefits, inadequate protection of First Nations lands or other implementation improprieties. Hundreds of specific claims have been settled, with hundreds more under negotiation or pending. Typically, settlements entail financial compensation; rarely, if ever, do they involve governance matters. By contrast, comprehensive claims include financial compensation, land ownership, governance provisions and other elements.

Federal claims policy2
The signing of Treaty 11 in 1921-2 marked the end of more than two centuries of treaty making between Indigenous Peoples and British and Canadian authorities. Two fundamental problems beset both pre-Confederation treaties and the “numbered treaties” signed between 1871 and 1923. First, there was a fundamental disagreement as to the nature of the treaties. The Canadian government largely saw the treaties as land deals, by which the Indigenous Peoples gave up their lands and their autonomy in return for specified benefits. By contrast, the Indigenous Peoples believed the treaties to be peace and friendship agreements for sharing lands and resources, entailing neither transfer of land ownership to the Canadian state nor surrender of political sovereignty. In turn, this reflected the oftentimes questionable processes characterizing treaty making, evident for example in substantial differences between the oral commitments made by the Canadian negotiators and the written texts of the treaties, which many Indigenous leaders could not understand as they spoke and read little, if any, English (Fumoleau, 1973).

Second, treaties were never signed over huge swaths of Canada, including all of present-day Nunavut, Northern Quebec and Labrador, most of Yukon and British Columbia and parts of the present-day NWT. The Indigenous Peoples in these regions were never conquered militarily, yet without even the semblance of a treaty relationship, the Canadian state simply assumed control and pushed the original inhabitants to the margins socially and politically. This absence of treaties across much of Canada led to the development of the federal government’s comprehensive land claims policy.

Various Indigenous Peoples had been pushing for many years for Canada to recognize their rights to their traditional territories and to self-government, with little success. A major legal breakthrough occurred with the 1973 Calder case brought forward by the Nisga’a of Northwestern British Columbia. Although the Nisga’a lost, the justices of the Supreme Court of Canada recognized that Aboriginal title to traditional Indigenous lands once existed and several justices concluded that it still existed as “unextinguished Aboriginal title.” It is widely believed that the Calder case forced the federal government to develop a comprehensive claims policy in anticipation of future legal challenges. While Calder hastened Ottawa’s response, Christa Scholtz of McGill University has shown through analysis of cabinet documents that the federal government was already well on the way to establishing a formal policy for land claims (Scholtz, 2006).

Federal comprehensive claims policy emerged in tandem with the negotiation and 1975 settlement of the James Bay and Northern Quebec Agreement, which was negotiated and finalized in record time, owing to the Quebec government’s need to ensure that its massive James Bay hydro-electric project was on sound legal ground. Many of the policy’s basic provisions remain in place today, though, as outlined below, some have changed. As summarized in the 1981 policy statement In All Fairness (Minister of Indian Affairs and Northern Development, 1981), the federal government established and ensured compliance with the claims process, including the basic decision as to whether an Indigenous claim should be accepted for negotiation. Among the important elements of the policy was this: claims were only to be entertained in areas not already subject to treaty, though an important exception was made in the NWT where the implementation of Treaties 8 and 11 was judged to have been so fundamentally flawed as to warrant negotiation of a claim. A central objective for the federal government was certainty and finality as to jurisdiction over lands; accordingly, extinguishment of Indigenous title became a central requirement for settling claims. Ottawa refused to permit self-government demands to be addressed in claims processes; both Indigenous and government negotiators have said that this restriction shaped the nature of the early finalized claims in important ways. Given the exclusion of self-government concerns, the claims process focussed on land ownership and use, wildlife management and money; minimal attention was paid to social issues such as education, health and welfare. Citing limited capacity to manage the complex processes involved, Ottawa was initially only willing to negotiate six claims at a time.

Widespread dissatisfaction – Indigenous leaders found the In All Fairness title ironic – led Conservative DIAND Minister David Crombie to establish a task force, headed by Murray Coolican, charged with examining the comprehensive claims policy. The “Coolican Report,” Living Treaties, Lasting Agreements, “recommended abandonment of cash and land deals, and a wholesale broadening of the land claims policy to allow for the negotiation of social, political and cultural issues. It recommended also that land claims settlements affirm, rather than extinguish aboriginal rights” (Fenge & Barnaby, 1987, p.13). Ottawa’s revised policy, the 1986 Comprehensive Land Claims Policy (Minister of Indian Affairs and Northern Development, 1986) offered some modification of the 1981 policy, most notably, perhaps, the abandonment of the requirement for blanket extinguishment of Aboriginal rights, but it stopped well short of the Coolican Report principles.

In 1995, the Liberal government’s recognition of “the inherent right to self-government” included willingness to entertain both self-government demands and land claims at the same negotiating table. This fundamental shift opened the way for very different claims processes and settlements, exemplified in the Tłı̨chǫ Agreement and the Labrador Inuit Land Claims Agreement, both of which include far-reaching self-government provisions.

Although federal claims policy is constantly under review, little of major significance has changed since the 1990s. A 2014 paper, Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights (Aboriginal Affairs and Northern Development, 2014, p.3) described as an “interim policy,” put forward no substantial proposals for modifying either the process or the outcome of claims negotiations.

In January 2019, the Liberal government announced, without going into specifics, that it was working towards a sweeping revamp of policies on comprehensive claims and self-government, to be in place by June 2019. Indigenous leaders, some of whom disparaged the plan as “White Paper 2.0,” pushed back strongly, calling for an Indigenous-led process. At an Assembly of First Nations forum in May, Crown-Indigenous Relations and Northern Affairs Minister Carolyn Bennett bowed to pressure and abandoned the plan. Officials, she said, were now working on “a ‘directive’ to guide federal negotiators at dozens of tables discussing modern treaty and self-government agreements with First Nations.” (Barrera, 2019) No timeline was specified.

A change of great import was announced in the March 2019 federal budget. Prior to the announcement, Indigenous claimant groups, typically heavily outgunned by Ottawa in terms of expertise and financial wherewithal, were able to pursue claims by virtue of loans from the federal government. These loans, which often mounted into the millions, sometimes tens of millions, had to be repaid out of claims compensation monies once the claims were finalized. At least one First Nation abandoned its claim at least in part because of its calculation that the loans it would need to repay exceeded the money it could expect from its claim. In a major policy reversal, the budget promised to forgive existing loans and to return to claimant groups the value of loans they had paid off. Estimates were that this would amount to $1.4 billion, including $938 million in fiscal 2018-19 alone (Minister of Finance, 2019).

Process
Some noteworthy changes have occurred in the claims process since the 1970s, such as Ottawa’s acceptance in 1995 of self-government as an integral element of claims negotiations; the enhancement of the territorial governments’ role in the process, from little more than observers to key partners; and the recent announcement of loan forgiveness. In most respects, however, the process remains much as it was when the claims policy was first enunciated.

Most significant perhaps, is the federal government’s continuing preeminent role in all aspects of the process. In effect, Ottawa sets the rules of the process and retains final decision-making power over proposed settlements. At the outset, the federal government determines whether to even accept a claim for negotiation; claimant groups are required to provide extensive information to Ottawa on subjects such as use and occupancy of traditional lands.

Once the federal government accepts a claim for negotiation, a framework agreement is developed, setting out the basic issues and the process to be followed. As in other phases of the process, Ottawa, the claimant group, and the provincial or territorial government involved must all approve the framework, though Ottawa is the dominant player. Eventually, unless negotiations break down, an agreement-in-principle (AIP), emerges. The AIP, which is not legally binding, forms the basis for thrashing out formal language in a final agreement. The tentative agreement requires the passage of enabling legislation in Parliament and in the territorial or provincial legislature as well as a ratification vote by members of the claimant group. More than one tentative agreement has been derailed when ratification failed.

Summarizing the process in this way might seem to imply a quick and straightforward process. The reality is far different. The James Bay and Northern Quebec Agreement may have been settled in a remarkably short period of time, but many subsequent claims took two decades or more to come to fruition, with many stops and starts along the way. And some, such as the Labrador Innu claim, first put forward in 1977 (though not accepted until 1991), are still under negotiation.

A finalized claim is a daunting document, running sometimes to hundreds of pages of dense legal language – which on occasion (often by design) lacks clarity on important issues. Critically important are the accompanying implementation plans, which set out in extensive detail which parties to the claim are responsible for fulfilling which provisions, funding levels, accountability mechanisms and the like. Most cover the first decade of the claim; re-negotiation is often fraught as the parties try to rectify what they see as shortcomings and problems in the claims or implementation contracts. Many older claims no longer operate under implementation contracts but instead have transitioned to non-binding implementation plans.

What, then, do comprehensive claims entail?

Comprehensive claims – Common provisions
Provisions of the finalized comprehensive land claims across the North vary a good deal depending, among other things, on the federal government’s policy at the time, the objectives and priorities of the Indigenous claimant groups and the particulars of the lands and governance issues subject to claims. Each settled claim has unique provisions, but certain features are found in all claims. In return for relinquishing Aboriginal title to their traditional lands (but not other Aboriginal rights) to the Crown, claimant groups receive:

  • Cash: Ottawa pays substantial amounts of money over a specific period ($1.14 billion over 14 years in the case of the Nunavut claim) for the land, including for past usage. These monies are paid to the organization representing the claim beneficiaries and invested in trust funds and economic development projects. The interest generated is used to fund social, cultural and political activities.
    Title to land: Ownership of specific parcels of land is formally vested in the Aboriginal organization (again, to be held in common for all beneficiaries). Total land quantum ranges from about 15 per cent to nearly 30 per cent of the total “settlement area.” A proportion of this land includes subsurface rights; this is significant since land ownership in Canada does not normally include rights to the subsurface. Specific lands are selected by the claimant group in negotiations with government, on the basis of economic potential, cultural and spiritual importance, environmental sensitivity, and related factors.
  • Access and harvesting rights: The rights of claim beneficiaries to travel on and to hunt and fish throughout their traditional lands is affirmed, subject to conservation measures, safety issues and the like.
  • Governance commitments: Early settled claims typically included federal commitments to negotiate wide-ranging self-government regimes and general frameworks for the negotiations. Since Ottawa agreed to negotiate self-government alongside land claims in 1995, some land claim agreements have included extensive self-government provisions.
  • Co-management boards: Each settled claim provides for the establishment of a suite of tri-partite boards, featuring guaranteed Indigenous participation, dealing with wildlife, land-use planning and environmental regulation.

In addition, each claim includes a host of miscellaneous provisions and benefits, ranging from royalty arrangements to preferential hiring in government to guaranteed participation in the creation and management of national parks.

Implementation issues
For Indigenous Peoples, finalizing a comprehensive land claim, though a long, arduous process, by no means represents the end of the journey. Experience has shown that ensuring full and proper implementation of claim provisions can be every bit as difficult – and important – as settling claims. Frustration with Ottawa’s implementation failures led in 2003 to the creation of the Land Claims 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 to its implementation responsibilities. Suffice it to say here that proper implementation is necessary to fulfill the promise of comprehensive land claims. ◉

Graham White is Professor Emeritus of Political Science, University of Toronto. His book on co-management boards in the three territories will be published in the Spring by the University of British Columbia Press.

Notes
1. For more detailed accounts a good source, with links to a wide range of documents and other materials, is the website of the Land Claims Agreements Coalition (www.landclaimscoalition.ca). See especially “Modern treaties 101: A crash course.” See also Fenge (2015).
2. This section only considers a few highlights in the evolution of federal claims policy. For a more extensive discussion, see Fenge, “Negotiation and implementation.”
3. See Chapter 3: Indigenous land rights and cabinet decision-making in Canada (1945-1973).

References
Barrera, J. (2019, May 2). Carolyn Bennett backs off policy changes to modern treaty and self-government processes. CBC News. Retrieved from https://www.cbc.ca/news/indigenous/carolyn-bennett-rights-policy-directive-1.5120973

Department of Aboriginal Affairs and Northern Development Canada (2014). Renewing the Comprehensive Land Claims Policy: Towards a framework for addressing Section 35 Aboriginal rights. Ottawa.

Department of Indian Affairs and Northern Development (1985). Task Force to Review Comprehensive Claims Policy, Living treaties, lasting agreements. Ottawa.

Fenge, T. (2015). Negotiation and implementation of 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, Aboriginal rights, and treaties in Canada (pp. 105-137). Montreal and Kingston: McGill-Queen’s University Press.

Fenge, T., & and Barnaby, J. (1987). From recommendations to policy: Battling inertia to obtain a land claims policy. Northern Perspectives 15.

Fumoleau, R. (1973). As long as this land shall last: A history of Treaty 8 and Treaty 11, 1870-1939. Toronto: McClelland and Stewart.

Scholtz, C. (2006). Negotiating claims: The emergence of Indigenous land claim negotiation policies in Australia, Canada, New Zealand, and the United States. New York: Routledge, 2006).

Minister of Finance (2019, March 19). Investing in the middle class: Budget 2019. Ottawa.

Minister of Indian Affairs and Northern Development (1981). In all fairness: A native claims policy. Ottawa.

Minister of Indian Affairs and Northern Development (1986). Comprehensive Land Claims Policy. Ottawa.


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