Important Resource Links
United Nations Declaration on the Rights Of Indigenous Peoples Act
National Centre for Truth and Reconciliation
The doctrine of Aboriginal rights exists… because of one simple fact:
when Europeans arrived in North America, Aboriginal peoples were already here,
living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal status.
– Chief Justice Lamer in R. v. Van der Peet, para 30.
The land knows us
For many Indigenous people, the concept of “Land Back” means something much more than and is distinct from simply ‘ownership’ – it means land stewardship and protection. It’s belonging to the land, building community through traditional knowledge and self-identity, language, self-determination and self-government. This is fundamental for the sovereignty of present and future generations.
Land connects to every aspect of existence – cultural, legal, economic, political spiritual, and Nation Nation relationships.
But throughout our collective history, Indigenous Nations have been forcefully removed from or dispossessed of their traditional territories, moved to worse locations in order to “make room” for settler agricultural or urban growth. Even after treaties were established, Indigenous lands have been expropriated for roads, power and telephone lines, dams, canals and railways. As a result in Canada and the United States, First Nations often have land bases that are a patchwork – fragmented or isolated, disproportionately impacted by environmental hazards, often with little ability to expand as their Nation grow.
Canadian Realities: We are all on Indigenous land
Treaties are constitutionally protected, mutually binding agreements establishing legal frameworks of responsibility between the Government of Canada (known as “the Crown” ) and Indigenous Nations. They define a ‘bundle of rights which may include the use and occupation of land, natural resources and sub-surface rights (mineral rights below the ground), economic rights including annuity payments, hunting and fishing rights, education and more.
Treaty negotiations are both a historic and dynamic process. Those signed by Indigenous peoples and the Crown between 1701 and 1923 are known as historic treaties, while modern treaties refer to agreements negotiated since then.
Part of the historic treaty-making process created federal reserves – land set apart and designed for the use and occupancy of a First Nation. But reserves are just a small part of land claims areas, which encompass all of a Nation’s traditional lands. Land claims are grievances brought by First Nations against the federal government because of unfulfilled treaty obligations or breach of responsibility according to the Indian Act.
There are many paths that First Nations undertake to resolve treaty and land claims issues. Here are some basic concepts:
Specific claims
Specific claims address historic wrongs. They are made by a First Nation against the Government of Canada when the federal government is deemed to have breached its obligations under a historical treaty regarding the administration of land and other First Nation assets and to the fulfillment of Indian treaties that have not been accepted for negotiation or that have not been resolved through a negotiated settlement within a specified time frame.
For example, a specific claim could involve
- the failure to provide enough land as promised in a treaty
- the illegal lease of Treaty lands by the Crown
- failure to adequately compensate for lands unlawfully taken or damaged by the Crown
- the improper handling of a First Nation’s money or natural resources by the Crown.
The treaties themselves are not open to renegotiation.
This summer, the Waywayseecappo First Nation in Manitoba reached a settlement with the Crown based on a longstanding claim over the forced removal of 30 square miles of traditional land over a century ago. The basis of the claim was that Canada wrongfully took these lands from this First Nation without their consent and without proper compensation. The settlement includes economic compensation and the right of that Nation to buy back around 21,000 acres of land.
Treaty Land Entitlements (TLE) deal with land debt. A TLE is one type of “specific claim” which arises when a First Nation did not receive all the land to which it was entitled under the terms of an existing treaty. TLE settlements are negotiated between First Nations and the Canadian federal government, typically with the participation of provincial and territorial governments. They have a constitutional obligation under the Natural Resources Transfer Agreement (1930) to transfer back unoccupied Crown lands necessary to allow the federal government to settle TLE claims.
That’s a lot of acronyms to confirm that provincial, territorial and federal governments all have a responsibility to resolve this kind of historic inequity.
Comprehensive Land Claim Settlements (or “Modern Treaties”) and Aboriginal Title
Comprehensive Land Claims Settlements are binding nation-to-nation agreements between the federal and provincial governments and some cases, a territory with First Nations, recognizing that Indigenous rights and title have never been extinguished in areas not already covered by historical treaties.
These new treaties may address
- Ownership, use and management and use of land, water and natural resources, including fish and wildlife
- Environmental protection
- Economic development, employment, and royalties from resource development
- Royalties from resource development
- Social and cultural enhancement
- Self-government and public government agreements
Aboriginal title refers to the inherent Indigenous right to land or a territory. Under Canadian law, it is referred to as sui generis, meaning “of its own kind or unique” – a distinct collective right to the use of and control over traditional territories. This right isn’t granted by the Government of Canada or any other non-Indigenous government. Instead, it is based on First Nations’ occupation of and relationship with their own traditional territories, culture and governance.
Currently, Netmizaaggamig Nishnaabeg (Pic Mobert First Nation) and the governments of Canada and Ontario are in negotiations to resolve their Aboriginal Title claim. The basis of Netmizaaggamig Nishnaabeg’s claim is that they are not party to the Robinson Superior Treaty since they were not present or represented when that treaty was signed in 1850. As a result, they continue to have Aboriginal Title to their territory.
More resources about land claims
https://www.afn.ca/policy-sectors/lands-claims/
https://specific-claims.ca/types-of-specific-claims
https://www.sct-trp.ca/hom/index_e.htm
https://www.nrcan.gc.ca/aboriginal-land-claim-boundaries/10714
https://www.sac-isc.gc.ca/eng/1305306991615/1611939771671
