Day One: Wednesday, February 26, 2014 Overview of Modern Treaties

Alastair Campbell: Senior Policy Liaison, NTI It’s necessary to examine the historical context in order to understand the present. Historically, Aboriginal people were not treated well in many cases.

Modern land claims agreements/modern treaties deal with land and aspects of governance or self-government.

The Land Claims Agreements Coalition (LCAC) is comprised of all groups who have signed modern treaties. It was founded in 2003, and its purpose is to get those treaties implemented as they should be. The LCAC is an informal organization whereby members represent themselves but act together.

Eras of Treaty Making

In Canada, there have been three eras of treaty making:

1. Pre confederation 2. 1867 to 20th century 3. 1973 to present

There is a gap between 2 and 3 above because in 1927 the Indian Act was amended to make it illegal to raise money for the purpose of pursuing land claims. This remained in effect until 1951. Following this period, comprehensive land claims didn’t get going until 1973.

Historic Treaty Territories This (below) is a map of historic treaty areas. It includes the old pre-confederation “peace and friendship” treaties in the Maritimes, as well as the “Robinson Treaties” in Ontario, then post-confederation numbered treaties running west and north from Ontario to the Mackenzie River delta.

The Royal Proclamation of 1763 The 250th Anniversary of the Royal Proclamation of 1763 is an important milestone. Last October the LCAC held a symposium to commemorate the Royal Proclamation. It was an important event in the recognition of land claims in Canada.

One of the key reasons behind the Royal Proclamation was the British desire to keep good relations with Aboriginal peoples and avoid further conflict. They had lost more soldiers battling Pontiac than in the conquest of New Quebec fighting the French, has just finished fighting the Seven Years War, and lacked the resources to continue.

The Royal Proclamation:

• Made private land deals with Aboriginal people illegal, and imposed a Crown-controlled process, including public meetings or assembly. It was designed to improve relations with Aboriginal people.

• “whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians” • “the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said

Indians” • “all Persons…upon any Lands not having been ceded to or purchased by us…(are) forthwith to remove

themselves from such Settlements.” When confederation happened, there was an attempt to take over Hudson Bay Company lands and expand to B.C. This was driven by concern that the Americans would get there first. A petition was made to the Crown for the transfer of Hudson Bay territories to Canada, with the provision that Aboriginal people on those lands would be dealt with in an equitable manner.

Numbered (historic) Treaties

• Include treaties 1 (1871) to 11 (1921). • Were made with the King or Queen “of Great Britain and Ireland.” • Their purpose was to open the land for settlement, trade, mining, lumbering, etc. • Included a requirement that Indians “cede, release, surrender and yield up all their rights, titles and

privileges whatsoever to the lands” in exchange for hunting, fishing and trapping rights. • Chiefs and headmen were to be “good and loyal subjects” and keep the treaties. • Reserves provided for: one square mile (e.g. Treaty 8) or 160 acres (e.g. Treaty 5) per family of five. • Did Aboriginal signatories understand their obligations in the treaties? In answer to the question: “If this

treaty had been explained in Ojibwa how could these concepts have been rendered?” a former UN

translator has asserted that because these are legal documents filled with legal terms, and they would not have been fully understood by Aboriginal signatories. Context is very important.

• Usually included a cash payment and annuities (usually $5 a year). • Also included tools and agricultural equipment (Treaty 8 and others); cattle; salaries of teachers; school

buildings and educational equipment; and a medicine chest (Treaty 6), later interpreted as the right to healthcare.

Above: modern treaties in effect

Modern Treaties

Modern treaties are more complex and detailed than historic treaties. They are also known as Comprehensive Land Claims Agreements. They deal with Aboriginal rights & title flowing from land use and occupancy, and are generally negotiated where Aboriginal rights & title have not been dealt with in previous treaties or by other means, and are recognized in S. 35, Constitution Act, 1982.

Stages in the development of modern treaties:

• 1971 Alaska Native Claims Settlement Act: This is significant because it was the first settlement of Aboriginal rights and title issues in North America. Alaska had become a state and wanted the land. Alaska Natives said they had claims to the land, and that the state could not take it and pass it on to third parties. Oil companies found oil on the North Slope, which created further development pressure. The Aboriginal group that challenged the oil companies obtained an injunction to stop development. This land claim was fought out in Congress, unlike in Canada where federal departments draft policies, use negotiators, then Parliament passes the end result. In the end roughly 10% of the State was put into the hands of Alaska native development corporations through the settlement, with both surface and subsurface rights. This U.S. development was an important milestone in changing the mindset around the approach to Aboriginal rights and title in Canada.

• 1973 Calder case: signaled the beginning of modern land claims in Canada. Involved Nisga’a title in British Columbia. Federal government responded by announcing a policy for the negotiation of land claims.

• 1973 Kanatewat case: an injunction to stop hydro development in James Bay because of unsurrendered Aboriginal rights. The injunction was overturned, but negotiations began with the Crees and Inuit of northern Quebec.

• 1973 Paulette case: raised the issue of Aboriginal rights in the NWT Mackenzie Valley, despite Treaties 8 and 11 having been signed in the region.

• 1978 Baker Lake case: Judge Mahoney found that there were continuing Aboriginal rights held by Inuit in the Baker Lake area. However, he said that permits, leases, etc. at the time did not infringe on Inuit rights.

The Federal Perspective on Modern Treaty Objectives: • “Land claims and self government agreements achieve the following:

o “greater certainty over rights to land and resources, therefore contributing to a positive investment climate and creating greater potential for economic development and growth;

o “greater control for Aboriginal people and Northerners over the decisions that affect their lives.” (AANDC website).

• The federal perspective on the objectives of modern treaties is very much land and resource focused; it’s focused on creating a positive investment climate.

• Objectives of the Nunavut Land Claims Agreement (NLCA) (from the Preamble): o Certainty and clarity in land ownership. o Inuit participation in management of lands and resources, including the offshore. Federal government

was originally unwilling to negotiate offshore rights. o Guarantees Inuit wildlife harvesting and management rights. o Provides financial compensation and economic opportunity. o Includes Inuit self-reliance and social and cultural well-being.

Constitutional Status • NLCA 2.2.1 A land claims agreement under the Constitution Act, 1982 • Constitution Act 1982 • RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

o 35.(1) “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

o (2) “In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.”

• RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA o 35. (3) “For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of

land claims agreements or may be so acquired.” • GENERAL

o 52.(1) “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

A List of Modern Treaties • Newfoundland & Labrador

o Labrador Inuit Land Claims Agreement (2005) • Quebec

o James Bay and Northern Quebec Agreement (1975) o North-Eastern Quebec Agreement (1978)

• Nunavut o Nunavut Land Claims Agreement (1993) o Nunavik Inuit Land Claims Agreement (2008) o Eeyou Istchee Land Claims Agreement (2011)

• Northwest Territories o Inuvialuit Final Agreement (1984) o Gwich’in Comprehensive Land Claims Agreement (1992) o Sahtu Dene & Metis Comprehensive Land Claim Agreement (1994) o Tlicho Land Claims & Self-Government) Agreement (2003)

• Yukon o Umbrella Final Agreement (1993) o Yukon First Nation Final Agreements:

1. Champagne and Aishihik First Nations (1995) 2. First Nation of Na-Cho Nyäk Dun (1995) 3. Teslin Tlingit Council (1995) 4. Vuntut Gwitchin First Nation (1995) 5. Little Salmon/Carmacks First Nation (1997) 6. Selkirk First Nation (1997) 7. Tr’ondëk Hwëch’in (1998) 8. Ta’an Kwächän Council (2002)

9. Kluane First Nation (2004) 10. Kwanlin Dün First Nation (2005) 11. Carcross/Tagish First Nation (2006)

• British Columbia o Nisga’a Final Agreement (2000) o Tsawwassen First Nation Final Agreement (2009) o Maa-Nulth Final Agreement (2012)

Modern Treaties in Negotiation

Above: modern treaty negotiations underway at present time • There are some areas with overlapping claims. These are difficult to resolve, but progress is being made. • Some Inuit claims have not been settled

Above: Grand Chief Billy Diamond signs the James Bay Northern Quebec Agreement

Above: The signing of the Nunavut Land Claims Agreement, 1993 Nunavut Land Claims Agreement Background • Negotiations begun by Inuit Tapirisat of Canada (ITC, now ITK] established 1971. • 1974: Inuit Land Use and Occupancy study (NWT). This document is now in digital form. It involved the

establishment of land use by Inuit, and was based on interviews with virtually every hunter and trapper in Nunavut. Collected detailed information about where wildlife were taken, made maps, and produced reports to inform the Land Claim

• 1976: Inuit table the Land Claim with the federal government • 1982: Tungavik Federation of Nunavut (TFN) established to negotiate NLCA • 1992: Inuit approved NLCA by referendum. • 1993: NLCA signed by Prime Minister of Canada, TFN, & GNWT. The NLCA and Nunavut Government Article 4 of the Nunavut Land Claim states that there will be a Nunavut Government, and the government will introduce legislation in Parliament to establish it. This is the shortest part of the NLCA, but perhaps the most important. This became a crunch issue, determining whether or not the agreement would go forward. Inuit from the beginning had wanted to set up a separate government, but the federal government held the view that political arrangements had no place in land claim agreements. • In late 1991/early 1992 there was a critical meeting between TFN and Minister Siddon. The question was asked:

Are you willing to guarantee us the right to the territory of Nunavut? Siddon agreed, but without a Cabinet mandate to do so. Later that night he obtained the Prime Minister’s approval. This is a rare case in the history of treaties, where a political leader demonstrated a willingness to take risks and commit to something important.