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.
As a modern policy approach, the federal Comprehensive Claims Policy (CCP) dates back to the 1973 Statement on the Claims of Indian and Inuit People. This Policy was drafted in response to the Supreme Court of Canada’s decision in Calder. The Calder decision made it clear that First Nations are the title holders to their traditional territories and that this title is a burden on Crown sovereignty. In 1981/82 Canada divided the claims policy into two separate policies: Outstanding Business (Specific Claims), and In All Fairness (Comprehensive Claims). Several reviews followed, but the last formal policy revision was released by Canada in 1993.
Despite significant advances in Canadian jurisprudence (in particular, the Supreme Court of Canada’s decisions in Delgamuukw, Haida and Tsilhqot’in) and in international law (the United Nations Declaration on the Rights of Indigenous Peoples), Canada has been unwilling to issue an updated policy that meaningfully reflects these substantive and significant changes that have taken place since the early 1990s. In reviewing what has been said by First Nations about the CCP, it is clear that there are significant issues with the current policy.
Some of the more common issues include:
- The CCP is Canada’s policy, not a First Nation policy. It has been imposed unilaterally by one partner and does not represent common agreement on objectives or content.
- Canada continues to hold extinguishment as it a central policy objective – whether this is expressed explicitly or otherwise. This is in opposition to the recognition and affirmation of Aboriginal and treaty rights in the Constitution Act, 1982.
- The CCP encourages division between and among nations with its so-called “results based” approach.
- The rights of third-parties and corporations receive more recognition than prior Aboriginal rights and title.
In light of recent resolutions (10-2010, 58/2012, 71/2011) the AFN continues to advocate for substantive reforms to the CCP based on the development of a broad recognition and reconciliation framework.
- BCAFN Chiefs CCP Discussion Guide – Revised July 16 – 2013
- 1987 CCP Policy
- Resolutions: 10/2010, 58/2012, 74/2012, 71/2011