The federal government has been negotiating modern treaties with Aboriginal groups and provincial/territorial governments since 1973. To date, 26 comprehensive land claims and three self-government agreements have been signed. As of March 2014, there were approximately 100 ongoing comprehensive land claim and self-government negotiations.
The policy that guides the federal government in treaty negotiations is called the Comprehensive Land Claims Policy. The modern policy had its genesis in 1973 with the Statement on Claims of Indian and Inuit People. The most recent update to the policy took place in 1986. The purpose of Comprehensive Land Claims Policy, as per the 1986 policy, is to "clarify the land and resource rights of Aboriginal claimants, governments and the private sector, through the negotiation of settlement agreements".
In September 2014, the Department of Aboriginal Affairs and Northern Development Canada released Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights (the "Interim Land Claims Policy". The purpose of the Interim Land Claims Policy is to provide a broad overview of the federal government's current approach to negotiating treaties and to garner feedback in preparation of a final policy.
Similar to the previous policy, The Land Claims Policy is divided into sections: overview, scope of negotiations, and treaty negotiations processes and procedures.
The Overview section covers the objectives of treaty negotiation. The main takeaways from this section are that treaty negotiations are intended to address Section 35 rights in a manner that is equitable to Aboriginal people and all Canadians. Additionally, this section reinforces that treaties are not the sole means of addressing Section 35 rights, for example, consultation protocols, fishery programs or other arrangements may effectively address these rights prior to, concurrently, or in the alternative to treaty negotiations. Also, this section emphasizes the necessity of provincial/territorial governments' participation being critical in treaty negotiations, self-government arrangements, and/or non-treaty arrangements.
The Scope of Negotiations is the most substantive section of the Interim Land Claims Policy and is divided into several subsections. Within the subsections, the majority are substantially the same or identical to the 1986 policy, however, several subsections are substantively different or entirely new. Those sections that have changed between the 1986 policy and the Interim Comprehensive Land Claims Policy are:
Certainty: this subsection outlines the importance of certainty with regard to the land and resources that are affected by treaty negotiations as well as making the link between negotiations and reconciliation of Section 35 rights and coexistence with pre and post treaty rights.
Certainty with respect to non-land related rights: in addition to dealing with lands and resources, treaties can include self-government agreements and a range of other non-land related interests, such as those for culture or education.
Incremental approaches to treaty negotiations: incremental approaches are a flexible tool that can be used during ongoing negotiations in an attempt to complete treaty negotiations or otherwise address Section 35 rights. This is a significant policy change from the more stringent 1986 policy, where, for example, it was clear that no monetary advances were to be given under any circumstance prior to an agreement being reached.
Lands: the sections dealing with lands have been divided from the singular subsection found the 1986 policy into four subsections: lands, treaty settlement lands, shared territories and overlapping claims, and trans-boundary claims. The new subsections are substantially the same as the earlier policy, though do offer greater clarity and provide a number of policy changes, the most significant of which relates to overlapping claims. Under the 1986 policy, where there were overlapping claims no grants of land would be given to any group until the dispute(s) were resolved. The Interim Comprehensive Land Claims Rights Policy provides that government "can consider options in advance of final treaty which support the reconciliation of section 35 rights and encourage [a]boriginal groups to resolve the dispute", removing the explicit ban on grants of land during times of dispute.
Negotiation of non-treaty agreements: for those Aboriginal groups who wish to pursue methods of addressing Section 35 rights other than treaty negotiation, for lands and resources, the federal government may enter into non-treaty agreements. The treaty negotiations process and procedures is the last section of the Interim Comprehensive Land Claims Policy and it outlines the procedures for treaty negotiation both in and outside of British Columbia. The 1986 policy did not make a distinction between British Columbia and out of province treaty negotiation procedures. The Interim Comprehensive Land Claims Policy addresses the recommendations that were made by the Claims Task Force.
Treaty negotiation in British Columbia is divided into six stages:
- Statement of intent to negotiate.
- Readiness to negotiate
- Negotiation of a framework agreement
- Negotiation of an agreement-in-principle
- Negotiation to finalize a treaty
- Implementation of the treaty
As a result of the implementation of the Claims Task Force recommendations, the primary difference between the negotiation process in British Columbia and in other provinces is that in British Columbia Aboriginal groups are not required to submit a statement of claim and supporting materials for government review and acceptance, rather, Aboriginal groups may enter into the negotiation process on the basis of unresolved Section 35 rights.
This Interim Land Claims Policy is not intended to be a final policy document. Rather, it is intended to broadly outline the Government of Canada's current policy for negotiating treaties and to generate feedback prior to a final policy being completed.
In summary, the primary differences between the Interim Land Claims Policy and the former 1986 policy are:
- new treaty making principles based on recognition and reconciliation;
- more flexible options for addressing Aboriginal rights both inside and outside of treaty negotiations;
- shifting the focus from settling claims to reconciling rights on an ongoing basis; and
- clarifying how Canada supports Aboriginal groups to resolve their shared territory disputes where these issues arise in the context of treaty negotiations.
The Interim Land Claims Policy was in a period of review until December 31, 2014, a final policy is expected in 2015.
Special thanks to articling student Saul Joseph for his assistance in drafting this bulletin.