Treaties, Rights and Claims

Treaty-making processes were undertaken in the spirit of peaceful co-existence and mutual respect by First Nations with the Crown.

Specific Claims

Specific claims deal with First Nation grievances against the Crown and arise where Canada is deemed to have failed to meet its obligations under Treaties or other agreements, or in how it has managed First Nation funds or assets.

In 2007 Canada introduced Justice at Last: A Specific Claims Action Plan (JAL). A key component of JAL was the Specific Claims Tribunal Act (SCTA) which came into force in October 2008. The Tribunal provides First Nation claimants dissatisfied with Canada’s response to their claims access to an impartial, binding decision making body.

Canada’s efforts since JAL, however, have led to new challenges for First Nations. Fewer than 15 percent of claims have resulted in settlement – the vast majority of claims have either been “rejected” or simply “closed”. Inadequate funding has also increased pressure on First Nations and the Tribunal, ultimately undermining Canada’s commitments in JAL.

A key component of JAL was a 5-year review of the SCTA. The review was unilaterally undertaken by Canada in 2010. Working with the Chiefs Committee on Claims (CCoC) the AFN carried out significant advocacy to ensure First Nation perspectives were represented.  The review was finalized in 2014, but former federal Minister Valcourt refused to release it.

In 2016 the new federal Liberal government made the review public, and tabled a Minister’s report to parliament acknowledging First Nation concerns and committing Canada to work with the AFN to develop recommendations for change.

In fall 2016, following the Minister’s report, the Office of the Auditor General (OAG) released an audit of the specific claims process. The audit found that Canada had failed to adequately implement JAL and included 10 recommendations for change. Canada accepted the OAG recommendations and again committed to working with First Nations and the AFN to address the specific claims process.

These commitments resulted in the development of an AFN-Canada Joint Technical Working Group (JTWG) mandated with examining Canada’s specific claims process and developing recommendations for change. The JTWG began meeting in November, 2016, and has had a number of meetings since then.

The JTWG is made up of AFN policy staff, First Nation technical experts from across Canada, and INAC officials. The JTWG is looking to develop recommendations for review by First Nation leadership by winter 2017.

Treaties

Treaty-making processes of the 18th, 19th and 20th centuries were undertaken in the spirit of peaceful co-existence and mutual respect by First Nations with the Crown. However, the imposition of the Indian Act and other legislation has directly undermined Treaties, nation-to-nation relationships with the Crown. First Nations’ understandings about the nature of Treaties, the significance of the Treaty-making processes and the spirit and intent of Treaties are critical, as are the oral histories and First Nation laws that governed at the time of Treaty-making.

The AFN has participated in numerous Treaty initiatives over the years to facilitate Treaty implementation. The AFN national strategy on Treaty implementation is guided by resolution 07/2010, “Sacred Treaties – Sacred Trust: Working Together for Treaty Implementation and Advancing our Sovereignty as Nations”. This resolution calls on AFN to support Treaty First Nations by coordinating the necessary dialogue and facilitating advocacy efforts led by each Treaty region.

The last effort at the national level to move Treaty implementation forward with Canada occurred in 2013 with the Senior Oversite Committee (SOC) process.

While initially promising, the Chiefs-in-Assembly ultimately chose to withdraw from the SOC process due to a lack of clear federal mandates.

In 2016, the Chiefs in Assembly passed resolution 12/2016 which calls on Canada to work with First Nations to develop a comprehensive consultation process that clearly defines the nation-to-nation relationship and includes the full implementation of Treaty rights.

With the current federal government, an opportunity exists to once again move Treaty implementation forward. The prime minister has stated that no relationship is more important than the one with Indigenous peoples, and has committed to seeking reconciliation through a nation-to-nation relationship. For many First Nations the nation-to-nation relationship finds meaning and is defined by Treaties.

The AFN remains committed to working with First Nation Treaty rights holders and Treaty regions to facilitate the full implementation of the Treaties based on the spirit and intent, and guided by the United Nations Declaration on the Rights of Indigenous Peoples.

Comprehensive Claims

Comprehensive land claims, sometimes referred to as modern Treaties, arise when First Nation rights and title have not been dealt with by treaty or through other legal means. In areas where this has occurred, comprehensive land claim and self-government agreements can be jointly negotiated between a First Nation and Canada and, where applicable, provincial and territorial governments.

The reform of Canada’s Comprehensive Claims Policy (CCP) has been a long-standing focal point for AFN advocacy. The policy is seriously out of step with significant advancements in the courts (e.g., the Tsilhqot’in Nation decision).

From 2014 to 2016, Canada chose not to engage the AFN on any CCP policy reform initiatives and, instead, led a one-sided federal engagement process focused on “renewing” the CCP. This process failed to reference relevant jurisprudence, developments in international human rights law, or even Canada’s own endorsement of the United Nations Declaration of the Rights of Indigenous Peoples.

With the election of the federal government in 2015, broad commitments have been made to move forward with First Nations on a nation-to-nation basis, and to fully implement the United Nations Declaration of the Rights of Indigenous Peoples. This is a positive signal that suggests a willingness to work with First Nations to develop a new approach to addressing Indigenous title and rights issues. AFN will look for opportunities to carry out advocacy to advance an effective CCP reform agenda.

Additions to Reserve

Additions to Reserves (ATR) refer to the process of converting Crown / fee-simple lands to reserve status. Reserve lands are lands set aside by the federal Crown for the collective use of a respective First Nation. Unique in this regard is the fact that a an Indian Band has the ability to exercise some jurisdiction over lands defined as reserve.

Efforts to improve the Additions to Reserve (ATR) policy and process have been the subject of a joint AFN-Canada joint technical working group (JWG) process that was initiated in late 2009. Progress with this working group was based on regular engagement with the Chiefs Committee on Claims (CCoC), and ultimately resulted in the release of a new ATR policy in 2016.

The AFN Chiefs-in-Assembly passed resolution 17/2016 calling on Canada to release the new policy and to create a high-level policy interpretation and oversite role for the AFN-Canada JWG to ensure the new policy was implemented consistently and effectively throughout a period of policy transition. INAC accepted an AFN proposal in fall of 2016-17 to this end.

Despite the initial commitment to work jointly on ATR policy transition and implementation, new federal partners at the AFN-Canada JWG lead to a shift in priorities away from joint work. As a result the CCoC directed the AFN to withdraw from the JWG process until INAC was willing to engage jointly.

Canada has recently indicated a desire to re-engage and discuss joint work. The AFN is seeking direction from the CCoC on next steps.

Treaties, Rights and Claims Staff

Craig Gideon
Director


Rikki Mcdonald
Administrative Assistant


Aaron Asselstine
Policy Analyst


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