Diabo Carleton Univ Presentation Feb 5 15

8/9/2019 Diabo Carleton Univ Presentation Feb 5 15

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Federal Comprehensive

Claims Policy vs.Recognition of Aboriginal

Title & Rights

ABORIGINAL PUBLIC LECTURECARLETON UNIVERSITY

FEBRUARY 5, 2015

BY RUSSELL DIABO


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Chretién and Trudeau2


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1969 White Paper on Indian

Policy

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1969 White Paper Proposals

Eliminate Indian Status.

Dissolve the Department of Indian Affairs within 5years.

Abolish the Indian Act & remove section 91.24.

Convert reserve land to private property that canbe sold by the band or its members.

Transfer responsibility for Indian Affairs from the

federal government to the province and integratethese services into those provided to otherCanadian citizens.

Provide funding for economic development.

Appoint a commissioner to address outstanding

land claims and gradually terminate existing Treaties.

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Frank Calder5


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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 Ca ld e r c a se . The Nisga’a Tribe lost the Calder case.

The Court ruled in favor of Aboriginal title; but thebench was split on whether Aboriginal title was

extinguished – three for, and three against

The 7th ruled against the Nisga’a on atechnicality.

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1973 Statement of Policy

The federal government responded to theCa ld er d ec isio n b y wa y o f a “sta tem ent o f

po l i cy ”, issued by the then Minister of IndianAffairs, J ean Chretien.

The federal policy was to negotiate three typesof claims; 1) Comprehensive C laims, 2) SpecificClaims, and 3) Claims of another nature.

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Evolution of CCP

Over the years, the 1973 “sta tem ent o f p o lic y ”has undergone a number of changes, the

biggest of which involved separatingComprehensive C laims and Specific Claims intodiscrete policies with additional definition.

The original statement on Comprehensive Claimswas amended in 1981 when Canada released“In A ll Fa irne ss ”.

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McKnight and Mulroney

Minister of IndianAffairs Prime Minister

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1985 Coolican Report

Early in 1985, David Crombie, then Minister ofIndian Affairs and Northern Development, put

reform of the Comprehensive land claims policyon his political agenda, he announced theappointment of a five-person task force, headedby Murray Coolican, to: "review all aspects of thecurrent comprehensive claims policy and makerecommendations as to future policy”.

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1985 Coolican Report (cont’d) Recommended 4 main principles: (1) recognition

and affirmation of Aboriginal rights; (2) negotiationof Aboriginal self-government; (3) shared Aboriginal

government responsibility for land and resourcesmanagement and (4) third party interests be treatedfairly.

Also recommends shift from cash and land deals,

and broadening of the land claims policy to permitnegotiation of economic, social, political andcultural issues. It recommended that rather thanextinguish Aboriginal rights, land claims settlementsshould affirm them.

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1986 CCP

In response to the Coolican Report this policywas changed again in 1986, and renamed the“Comprehensive Land Claims Policy”(emphasis

added). The word “Land” was added to clarifythat from the federal government’s perspective,“self-government” was a separate issue to benegotiated in accordance with the federal 1985Community-Based Self-Government Policy.

The 1986 Comprehensive Land Claims Policy hasessentially remained in effect as the federalnegotiation position regarding Aboriginal title upto today, except “extinguishment” has beenreplaced with the notion of “certainty”, as well

as some changes to the process.

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1990 Mulroney’s Post-OkaFour Pillars Policy

Accelerating settlement of Land claims;

Improving the economic and social conditions

on Reserves; Strengthening the relationships between

Aboriginal Peoples’ and governments;

Examining the concerns of Canada’s Aboriginal

Peoples’ in contemporary Canadian life.

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RCAP ReportWith regard to new treaties and agreements, the

Commission recommends that

2.2.6 The federal government establish a process for

making new treaties to replace the existingcomprehensive claims policy, based on thefollowing principles:

.

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RCAP (c o n t ’ d )

(a) The blanket extinguishment of Aboriginal landrights is not an option.

(b) Recognition of rights of governance is anintegral component of new treaty relationships.

(c) The treaty-making process is available to allAboriginal nations, including Indian, Inuit andMétis nations.

(d) Treaty nations that are parties to peace andfriendship treaties that did not purport to addressland and resource issues have access to thetreaty-making process to complete their treaty

relationships with the Crown

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In relation to all treaties, the Commissionrecommends that

2.2.11 The following matters be open for discussion in

treaty implementation and renewal and treaty-making processes:

governance, including justice systems, long termfinancial arrangements including fiscal transfersand other intergovernmental arrangements;

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lands and resources;

economic rights, including treaty annuities and

hunting, fishing and trapping rights;

issues included in specific treaties (for example,education, health and taxation); and

other issues relevant to treaty relationshipsidentified by either treaty party.

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1997De lgamuukw Decision The Supreme Court concluded that Aboriginal title is

a real property right, which enjoys constitutionalrecognition and protection via s.35 of the

Constitu t io n Ac t, 1982.

It he ld that, where Aboriginal title exists, and where ithas been infringed, the Crown must justify itsinfringement and reconcile its assertion of Crown title

with Aboriginal title. The Court identified two steps inthe justification test: (1) claimant proves infringement;and (2) Crown proves justified with fiduciary duty.

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1997De lgamuukw Decision Justification Test – consistent with fiduciary duty:

Consultation

Compensation - acknowledging the valueinherent in Aboriginal title lands and resources,the Court indicated that diminished rights wouldnormally require “valuable consideration”.

Surrender/extinguishment of Aboriginal title - onlyrequired when extreme measures are proposedby the First Nation, ones which would sever theconnection between future generations and theland.

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1997De lgamuukw Decision (cont”d)

In De lgamuukw, the Supreme Court of Canadaelaborated on nature of Aboriginal title:

The right to exclusive use and occupation of theland.

The right to choose to what uses the land can beput, subject to the ultimate limit that those usescannot destroy the ability of the land to sustainfuture generations of Aboriginal peoples.

Lands held pursuant to Aboriginal title have aninescapable economic component.

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1997De lgamuukw Decision (cont”d)Reconciliation:

In short, the Supreme Court of Canada has

recognized that Aboriginal title is a real propertyright, and that has a value. The Court has alsorecognized that othergovernments must justifyany infringement of that property right, andreconcile the assertion of Crown title with thereality of Aboriginal title.

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CCP inconsistencies with De lgamuukw

CCP sayscompensation is available, butnot part of the actual negotiations

because the Crown takes the positionthat negotiations should be future lookingand not focus on compensation for pastinfringements.

Yet, the April 28, 2000 Sta tem ent o n

C e rta in ty Princ ip le s speaks to reconcilingpast infringements. Ironically,compensation is payable to third parties.

To add insult to injury, First Nations areasked to release the Crown from any

future claims to compensation.

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The CCP alternatives to extinguishment, arestill forced and are not “recognition and

affirmation” i.e.,: certainty and finality;

modified and released; and

Non-assertion of rights.

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The federal treaty model/templaterequires that settlement lands becomefee simple lands and no longer under the

jurisdiction of the federal governmentpursuant to section 91(24) by providingthat upon the coming into force of thetreaty, “there will be no more landsreserved for the Indians within the

meaning of the Constitution Act, 1867”.

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Other inconsistencies with Principles ofFiduciary Duty, Honour of the Crown and

Reconciliation: Loan funding to negotiate, while

development on title lands is ongoing;

Forced elimination of tax exemption/immunity;

OSR – own source revenues affect programand services funding levels

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UN Declaration on the Rights of

Indigenous Peoples Article 3 & 4 – IP have right to self-determination

and self-government; Article 10 – IP have right not to be forcibly

removal from their lands; Articles 25 &26 – IP have rights to their traditional

lands and requires states to give recognition andprotection;

Article 27 & 28 – States shall establish fair andindependent processes to adjudicate rights, andIP have right to redress and compensation

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Previous Efforts at CCP Reform

Coolican - 1985 Task Force on Comprehensive Claimsknown as the Coolican Report met with limited successbut failed to obtain removal of extinguishment ofAboriginal Title. The 1986 CCP merely changed thewording from extinguishment to “certainty”. The intentremained the same eliminate Aboriginal Title.

DISC - 1999-2000 AFN De lgamuukw Implementation

Strategic Committee (DISC). The federal response waswhy change he CCP if First Nations are ready tonegotiate under the existing CCP.

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DISC – Six point strategy:

1. Public education,

2. Political negotiation/pre-litigation strategy,

3. Litigation,

4. Policy development,

5. Direct action/exercise of Aboriginal rights, and

6. International campaign

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AFN Recognition & Implementation of First NationGovernment Committee – ConfederacyResolution May 2004 in Regina:

Post- FNGA; RIFNG Committee Report March 2005 – identified

need for policy reform in 5 areas:1. Comprehensive Claims Policy,

2. Treaty Implementation,3. Inherent Right of Self-Government,4. Specific Claims, and5. Code of Conduct for Honour of the Crown

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Previous Efforts at CCP ReformRIFNG (cont’d)

Under PM Paul Martin’s Roundtable process –towards “transformative” reform;

Cabinet Retreat – May 31, 2005 First Nation-Federal Crown Accord Political

Accord on RIFNG signed – provided forrecognition and implementation approach in jointaction and cooperation on policy change in

areas identified in RIFNG Report Change of government and Harper government

refused to honour RIFNG Accord

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Common Table: in 2007 process established underBCTC to address common (policy) obstacles to

progress 6 key topics identified:

1. Recognition/certainty,

2. Constitutional status of lands,

3. Governance,4. Co-Management of Traditional Territory,

5. Fiscal Relations, ie., OSR and Taxation, and

6. Fisheries

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Federal Response: mainly negative

1. Insist on certainty, no to recognition, stay withexisting models, but willing to explore wording;

2. Constitutional status of lands – not willing tochange federal mandates;

3. Governance – concurrent law model andharmoniozation, not exclusive FN jurisdiction,

4. Co-management – area and resourcespecific solutions, third party interests need tobe balanced;

5. Fiscal relations, ie., OSR and taxation – nochange

6. Fisheries – no but will explore fish arrangements

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BC Response: less negative – two avenues:

1. Re certainty, recognition, andconstitutional status of lands –complicated, more study required notwilling to change federal mandates;

2. Re governance, co-management,fiscal relations, ie., revenue sharing andtaxation, fisheries – address in specificnegotiations at individual tables

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Federal Results Based

Assessment – Sept. 4, 2012

Assess acceptance of Harper government’score negotiating ComprehensiveClaims/Self-Government mandatesanddesired results, which are comprised of thefollowing key tenets:

Ac c ep t the ex t ingu ishm ent (m od ific a tion )

o f Ab o rig ina l Title;

Ac c ep t the leg a l re lea se o f Crow n lia b ility

fo r p a st viola tio ns o f Ab o rig ina l Title &

Rig hts;

Ac c ep t e l im ina tion of Ind ia n Reserves b y

a c c ep ting la nds in fee sim p le ;

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Federal Assessment (cont.)

Ac c ep t rem ov ing on- reserve tax

exempt ions ;

Resp e c t e xisting Priva te La nd s/ Third

Pa rty Intere sts (a nd therefore a lie na tio n

o f Ab o rig ina l Tit le territory w ithout

compensa t ion ) ;

Ac c ep t (to b e a ssim ila te d into ) ex isting

fe d e ra l & p ro vinc ia l o rd e rs o f

government ;

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Federal Assessment (cont.)

Ac c ep t a p p lic a tion o f Ca nad ia n

Cha rter of Rig hts & Fre ed om s ove r

g o ve rna nc e & institut io ns in a llmatters;

Ac c ep t Fund ing on a fo rm ula b a sis

b e ing linke d to o wn sourc e

revenue;

Other measures too, essentiallyaccepting to become Aboriginalmunicipalities.

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PM-AFN Meeting J an. 11, 201337


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Canada-AFN CC-SOC Process

Two Senior Oversight Committees wereagreed to: 1) Historic Treaties and 2)Comprehensive Claims.

AFN withdrew from Historic Treaty SOC.

Comprehensive Claims SOC was taken

over by actively negotiatingrepresentatives and excluded non-negotiating representatives.

Both SOC processes ended in Dec.

2013.

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2014 Tsilhq o t ’ in Decision

Re-Affirms the principles & tests inprevious SCC decisions, includingDe lgamuukw and Haida decisions.

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

Maintains “Doctrine of Discovery” infinding that the “radical or underlyingtitle to all the land” acquired byCrown.

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2014 Tsilhqot’in Decision

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 Federal Response to

Tsilhq o t ’ in

In September 2014, the federal Minister ofAboriginal Affairs, Bernard Valcourt issued an“interim” policy entitled “Renew ing theCom p rehensive La nd Cla im s Po lic y: Towa rd s a

Fram ewo rk fo r Ad d re ssing Sec tio n 35

Ab o rig ina l Rig hts ”.

The “interim” policy is merely a restatement ofprevious federal section 35 policies regardingextinguishment of Aboriginal Title andmunicipalization of Indian Bands.

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Federal Consultation Process

J oe Oliver acceptsDoug Eyford Report

Douglas Eyford appointedMinisterial SpecialRepresentative in Sept.2014.

Eyford consultation process

announced Sept. 2014.

Consultation Reportexpected early in 2015.

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“Algonquins of Ontario”Example of What’s Wrong with

Policy

Essentially a land grab of the EasternOntario/National Capital Region,

Parliament Hill, etc. by Crown gov’ts.

Pikwakanagan (Golden Lake Band)asserted land claim in 1983 to Canadaand again in 1985 to Ontario, without

agreement from other AlgonquinNation bands.

Ontario accepted to negotiate first in1991 then the federal government in

1992.

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“Algonquins of Ontario” (cont.)

“Algonquins of Ontario” is a policyfiction created by Ontario and federalgovernments.

The Algonquin Nation is not divided bythe Ottawa River, which was a majortravel route to and from Oka.

There are 10 federally recognizedAlgonquin communities 9 in Quebecand 1 in Ontario, 8,000-10,000 People.

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“Algonquins of Ontario” (cont.)

The federal approach to beneficiariesin the AOO claim gives standing to

about 6,000-8,000 non-status individualsand 9 non-status groups who in manyinstances will likely not meet the legalrequirements as title holders.

As a result the non-title holders areprovided with an opportunity toextinguish Algonquin Title and Rrights toterritory over which other AlgonquinFirst Nations assert Aboriginal Title &

Rights.

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“AOO” AIP Highlights

Extinguishes Algonquin Aboriginal Title with nocompensation for prior infringement (modify&release);

Non-Title Holders get section 35 status.

Replaces Golden Lake Reserve with privateproperty (Fee Simple);

Converts Pikwakanagan Indian Act Band

Council system into Municipal typegovernment through a self-governmentagreement & Pikwakanagan gives up taxexemption/immunity & 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 VillageAsserted Aboriginal Rights/Title Area

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â

Trilateral Agreement Territory: Location

MITCHIKANIBIKOK INIK

Quebec

Trilateral Agreement

Territory

Rapid Lake

Community

La Verendrye

Wildlife Reserve

Boundary


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Traditional Management

Areas


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Algonquin Nation Secretariat

Issues Federal officials have refused to act on

evidence presented in the SAR whichdemonstrates that within the Algonquin Nation

Aboriginal title is held at the band/communitylevel.

Canada has so far refused to engage seriouslyon this issue despite best efforts, and in factcontinues to negotiate with the “Algonquins of

Ontario” (AOO) over lands that are used andoccupied by TFN-WLFN-EVFN and over whichthey assert Aboriginal Title.

Canada continues to be in breach ofAgreements with ABL.

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Conclusion

What’s it going to take to bring about a change inthe CCP?

Crown engagement? More litigation?

Lobbying?

Direct action?

International efforts?

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Documents

Diabo Carleton Univ Presentation Feb 5 15