How claims are submitted, negotiated

There are two types of land claims under federal jurisdiction: comprehensive claims involve aboriginal peoples who had never signed a treaty, and specific claims, aimed at redressing historical wrongs.

Two types of claims fall under Ottawa's jurisdiction

Prime Minister Pierre Trudeau, right, and Indian Affairs Minister Jean Chretien, second from right, meet with Nisga'a First Nation leader Frank Calder, centre, on Feb. 7, 1973. The Trudeau government introduced a new land claim policy after a Supreme Court decision ruled the Nisga'a had pre-existing title to their lands based on occupancy and use. (Canadian Press)

In 1969, the government of Prime Minister Pierre Trudeau tabled the White Paper on Indian Policy, which proposed eliminating the Indian Act and native status. This raised an outcry among First Nations, who declared they were sovereign nations and denounced the government's attempt to extinguish their treaty rights.

In 1973, Trudeau reversed course and his government implemented a new policy to settle aboriginal claims. This was shortly after the Calder judgment, handed down by the Supreme Court, had recognized the Nisga'a First Nation's pre-existing title to the land based on occupancy and use since time immemorial.

The new policy defined two types of claims:

  • Comprehensive claims, concerning aboriginal peoples who had never signed a treaty, and
  • Specific claims, aimed at redressing historical wrongs related to treaties or instances where the government had breached its lawful obligation to a native group.

Comprehensive claims

At the time this policy was implemented, vast regions of Canada were not covered by a treaty with the Aboriginal Peoples living there. This was the case for practically all of British Columbia, most of the Northwest Territories, the Atlantic provinces and Quebec.

The federal government wanted to negotiate modern treaties with the communities living in these regions.

The new treaties address matters such as land ownership, fishing and hunting rights, participation in land and resource management, financial compensation, resource revenue sharing and economic development projects.

In many cases, the settlement includes an agreement on self-government for the aboriginal group.

"The advantage of treaties for First Nations is certainty on the land base and governance. It's a way of ensuring that First Nations are equally represented in the growth of the country," says Sophie Pierre, chief commissioner of the British Columbia Treaty Commission and former chief of the St. Mary's Indian Band.

For the federal and provincial governments, the notion of certainty involves clearly determining who owns the land and who can use it.

For a long time, governments required First Nations to formally surrender their rights (other than treaty rights) to attain certainty. Since 1986, faced with opposition from aboriginal groups, they have stopped using this "extinguishment model."

Thus, in signing an agreement-in-principle, the Innu of Quebec (see slideshow ) will retain their ancestral rights but will no longer exercise them, except for those that are explicitly mentioned in the modern treaty. In addition, the treaty will be periodically reviewed.

Six-step negotiation process

The negotiation of comprehensive claims is carried out in six stages and takes several years:

  1. Submission of claim: The aboriginal group prepares its statement of claim with supporting materials.
  2. Acceptance of claim: After assessing the claim, the Canadian government decides whether it will be accepted for negotiation.
  3. Framework agreement: The aboriginal group and the federal and provincial/territorial governments determine the issues to be addressed in the settlement negotiations.
  4. Agreement-in-principle (AIP): The parties reach agreements on the substance of the issues to be covered by the final agreement. They also develop an implementation plan.
  5. Final agreement and ratification: The government of Canada, in consultation with experts, ensures that legal, economic, environmental and social concerns, among others, have been accurately appraised. The final agreement is ratified by the three parties - i.e., the treaty receives constitutional protection.
  6. Implementation: This stage includes legal drafting, land titles and the execution of the various clauses in the agreement.

And the provinces?

A number of native groups are hesitant to sign agreements with provincial governments. 

"It's not necessarily that First Nations prefer the federal government to provincial governments," explains Renée Dupuis, a lawyer who specializes in aboriginal law and former chief commissioner of the Indian Specific Claims Commission.

"They're simply aware that the federal government cannot, at its sole initiative and discretion, divest itself of a constitutional obligation. [First Nations say]: Let's make agreements to define our inherent right to self-government rather than watch the federal government devolve its powers to the provinces." 

In the Prairie provinces, the reluctance to deal with provincial governments is even more pronounced, since First Nations in that region signed treaties with the British Crown before the provinces were even created. In 1930, the federal government transferred to Manitoba, Saskatchewan and Alberta jurisdiction over land and natural resources that Aboriginal Peoples claim they have never surrendered.

The absence of ties did not prevent the Cree and the Quebec government from signing the Peace of the Braves in 2002. This was a political/economic agreement aimed at facilitating economic development in the James Bay region. Specifically, the agreement allowed Hydro-Québec to develop the Eastmain-Rupert hydroelectric project.

Criteria for submitting a claim

The federal government decides whether a comprehensive claim can be accepted or not, according to certain criteria. For example, the aboriginal group must demonstrate that it was an organized society that occupied and used the land at the time of assertion of sovereignty by European nations. The traditional use of the land must have continued up to the present.

"In Quebec, the Huron, Abenaki and Mohawks can't submit a comprehensive claim because, according to the provincial and federal governments, they have not continuously occupied the area they live in today," explains anthropologist and aboriginal expert Pierre Trudel. But these First Nations, he adds, can nonetheless have rights of use in the area.

"The Abenaki have a different hunting season on Crown lands south of the St. Lawrence River. These ancestral rights of use are based on the fact that they are aboriginals and that historically, they used the land south of the river," he explains.