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Comprehensive Claims
(Modern Treaties) In Canada
March 1996
Background of Comprehensive Claims
The Supreme
Court of Canada in 1973 first recognized land rights based on Aboriginal
title. Aboriginal title is based on an Aboriginal group's traditional
use and occupancy of that land. Comprehensive claims are negotiated
in areas where Aboriginal title has not been dealt with by treaty or
by other legal methods.
In the 1973 Calder
decision, the Nisga'a people of British Columbia claimed continued Aboriginal
rights in their traditional territory. Although the court ruled against
the case because of a technicality, its decision led the federal government
to announce its willingness to negotiate land claims based on outstanding
Aboriginal title.
In the mid 1970s,
the Cree of James Bay went to court to stop the James Bay hydro-electric
project. The Cree argued that they had title to the land that would
be flooded by the project. They also argued that the project would threaten
their traditional way of life by damaging the environment. After the
Quebec Superior Court ruled in favour of the Cree, the federal and Quebec
governments negotiated a comprehensive claim with the Cree and Inuit.
In 1986 the federal
government announced a new comprehensive claims policy to respond to
concerns expressed by Aboriginal groups. Historically, one problem with
the treaty-making process had been that the federal government would
only negotiate treaties if Aboriginal peoples accepted "extinguishment"
of their Aboriginal rights and title. The new claims policy provided
alternatives to blanket extinguishment. It also widened the scope of
comprehensive claims negotiations to include offshore wildlife harvesting
rights, sharing of resource revenues, an Aboriginal voice in environmental
decision-making and a commitment to negotiate self-government.
What Are Comprehensive Claims?
Comprehensive
claims settlements are negotiated to clarify the rights of Aboriginal
groups to lands and resources, in a manner that will facilitate their
economic growth and self-sufficiency. Settlements are intended to ensure
that the interests of Aboriginal groups in resource management and environmental
protection are recognized, and that claimants share in the benefits
of development.
In order to achieve
these objectives, settlement agreements define a wide range of rights
and benefits to be exercised and enjoyed by claimant groups. These rights
and benefits usually include full ownership of certain lands in the
area covered by the settlement; guaranteed wildlife harvesting rights;
guaranteed participation in land, water, wildlife and environmental
management throughout the settlement area; financial compensation; resource
revenue-sharing; specific measures to stimulate economic development;
and a role in the management of heritage resources and parks in the
settlement area.
The Steps in the Comprehensive
Claims Process
The claims
process begins when the federal government accepts an Aboriginal group's
statement of claim and supporting materials. The federal government
will accept the claim if the statement confirms that the group claiming:
The Aboriginal
group is, and was, an organized society. The organized
society has occupied the specific territory over which it asserts
Aboriginal title since time immemorial. The traditional use and occupancy
of the territory must have been sufficient to be an established fact
at the time of assertion of sovereignty by European nations. The occupation
of the territory by the Aboriginal group was largely to the exclusion
of other organized societies. The Aboriginal
group can demonstrate some continuing current use and occupancy of
the land for traditional purposes. The group's Aboriginal
title and rights to resource use have not been dealt with by treaty.
Aboriginal title
has not been eliminated by other lawful means.
When the terms
of the final agreement have been approved by all parties, the agreement
is implemented by federal settlement legislation. The rights the Aboriginal
group receives from the federal and provincial/territorial governments
are protected by the Constitution and cannot be altered without the
consent of the Aboriginal group.
Negotiations can
often last many years, because the issues are complex and wide-ranging.
Aboriginal groups may obtain loans from the government to hire professional
and technical staff to help them prepare and negotiate their claims.
Loans are interest free until the agreement-in-principle is signed,
and are repayable after a final agreement has been reached.
Who's Involved in Negotiations?
Comprehensive
claims are negotiated by three parties: the federal and provincial or
territorial governments and the Aboriginal group. Provincial governments
must participate in negotiations because most of the lands and resources
involved in the settlement of claims fall under provincial jurisdiction.
Although lands
and resources fall under federal jurisdiction in Yukon and the Northwest
Territories, the territorial governments still participate fully in
the negotiations and in how the land claims policy is applied.
Self-government
arrangements are negotiable in tandem with claims negotiation in accordance
with the federal government policy on the implementation of the Inherent
Right.
Public and third-party
interests are respected in negotiations and, if affected, are handled
in a fair and just way. Federal negotiators must keep in touch with
third parties whose legal interests are directly impacted by the issues
being negotiated.
Claims in British Columbia
Because most
First Nations in BC have never signed treaties, the majority of the
province remains subject to outstanding Aboriginal land claims. From
the late 1800s, the BC government rejected the validity of claims, arguing
that Aboriginal rights or title were extinguished before BC became part
of Canada. If claims were found to exist, the province said they were
entirely the federal government's responsibility. But in 1990, the government
of BC reversed its decision.
In 1993, Canada,
BC, and First Nations in the province established the British Columbia
Treaty Commission (BCTC) to facilitate the negotiation of treaties.
Its main functions are to assess the readiness of the parties (Canada,
BC, and First Nations) to begin negotiation, allocate negotiation funding
to Aboriginal groups, help obtain services to resolve disputes when
requested, and monitor and report on the status of negotiations.
To date, the BCTC
has accepted 48 statements of intent to negotiate, which represent 70
percent of First Nations in BC. The BCTC is currently determining the
readiness of all parties to negotiate. To date, 30 negotiating tables
have been declared ready. Framework agreements have been signed by the
negotiators in the Gitanyow, Champagne and Aishihik, Sechelt, Gitxsan,
Wet'suwet'en Ditidaht, Teslin Tlingit and Kaska Dena negotiations.
Descriptions of Comprehensive
Claims
Ten comprehensive
claims agreements have been settled since 1973 when the federal government's
policy was announced.
The James
Bay and Northern Quebec Agreement (JBNQA) signed in 1975 was the
first comprehensive claim to be settled followed by the Northeastern
Quebec Agreement (NEQA) signed in 1978. Together these agreements
gave the 19 000 Cree, Inuit and Naskapi of northern Quebec over $230
million in compensation, ownership over 14 000 square kilometres of
territory, and exclusive hunting and trapping rights over another
150 000 square kilometres. -
The Inuvialuit
Final Agreement with 2 500 Inuvialuit in the western Arctic was
signed in 1984. The settlement provided them with 91 000 square kilometres
of land, $45 million to be paid over 13 years, guaranteed hunting
and trapping rights, and equal participation in the management of
wildlife, conservation and the environment, a $10 million Economic
Enhancement Fund and a $7.5 million Social Development Fund.
The Gwich'in
Agreement signed in 1992 provided the Gwich'in with approximately
24 000 square kilometres of land in the northwestern portion of the
Northwest Territories and 1 554 square kilometres of land in the Yukon.
In addition to these lands they will receive a non-taxable payment
of $75 million to be paid over 15 years, a share of resource royalties
from the Mackenzie Valley, subsurface rights, hunting rights, and
a greater role in the management of wildlife, land and the environment. The Nunavut
Land Claims Agreement reached in 1993 with the Tungavik Federation
of Nunavut is the largest comprehensive claim in Canada. The agreement
will provide some 17 500 Inuit of the eastern Arctic with 350 000
square kilometres of land, financial compensation of $1.17 billion
over 14 years, the right to share in resource royalties, hunting rights,
and a greater role in the management of land and the environment.
The final agreement committed the federal government to a process
which divides the Northwest Territories and creates the new territory
of Nunavut by 1999. The Council
for Yukon Indians representing 14 Yukon First Nations signed an
Umbrella Final Agreement with the Government of Canada and the Yukon
Territorial Government in 1993. The agreement sets out the terms for
the final land claim settlements in the territory. Final land claim
agreements were also reached with four of the First Nations: the Vuntut
Gwitchin First Nation, the Champagne and Aishihik First Nations, the
Teslin Tlingit Council and the First Nation of Na-cho Ny'a'k Dun.
These agreements provide the four Yukon First Nations with financial
benefits of $79 895 515, a land settlement of 17 235 square kilometres
and participation in wildlife and other management boards. In addition
to their land claim, the four First Nations also negotiated self-government
agreements which give them more control over land use on settlement
lands and greater authority in areas such as language, health care,
social services and education. The Sahtu
Dene and Metis Agreement came into effect in 1994. The settlement
provided the Sahtu Dene and Metis with 41 437 square kilometres of
land (of which 1 813 square kilometres will include mineral rights),
a share of resource royalties from the Mackenzie Valley, guaranteed
wildlife harvesting rights, participation in decision-making bodies
dealing with renewable resources, land-use planning, environmental
impact assessment and review, land and water use regulations, and
$75 million over 15 years. The Nisga'a
Agreement-in-Principle initialled February 15, 1996 calls for
a $190 million cash settlement and the establishment of a Nisga'a
Central Government with ownership of and self-government over 1 900
square kilometres of land in the Nass River Valley. It also outlines
the Nisga'a ownership of surface and subsurface resources on Nisga'a
lands and their entitlements to Nass River salmon stocks and wildlife
harvests.
For in-depth descriptions
of these settled and other ongoing claims, contact the Enquiries Kiosk.
This is one of
a series of information sheets produced by the Communications Branch,
Department of Indian Affairs and Northern Development. For more information
sheets on other topics, contact:
Public Enquiries
Kiosk
Department of Indian Affairs
and Northern Development
Ottawa, Ontario
K1A 0H4
Telephone: (819) 997-0380
QS-6047-0-EE-A1
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