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November 7, 2002 - Washington, DC

A contribution to the OAS session on “Right to Land and Territories”

The Government of Canada and the courts understand treaties between the Crown and Aboriginal people to be solemn agreements that set out promises, obligations and benefits for both parties.

Starting in 1701, in what was to eventually become Canada, the British Crown entered into solemn treaties to encourage peaceful relations between Aboriginal and non-Aboriginal people. Over the next several centuries, treaties were signed to define, among other things, the respective rights of Aboriginal people and governments to use and enjoy lands that Aboriginal people and governments to use and enjoy lands that Aboriginal people traditionally occupied.

Treaties include historic treaties made between 1701 and 1923 and modern-day treaties known as comprehensive land claim settlements.

Treaty rights already in existence in 1982 (the year the Constitution Act was passed), and those that arose afterwards, are recognized and affirmed by Canada’s Constitution.

In the 18th Century, the French and British were competing for control of lands in North America. The two colonial powers formed strategic alliances with First Nations to help them advance their respective colonial interests in the continent. For example, in what are now New Brunswick and Nova Scotia, the British made a series of “Peace and Friendship” treaties with the Mi’Kmaq and Maliseet tribes between 1725 and 1779.

By the early 1760s, the British had established themselves as the dominant colonial power in North America. The British Royal Proclamation of 1763 prohibited the purchase of First Nation lands by any party other than the Crown. The Crown could purchase land from a First Nation group that had agreed to the sale at a public meeting of the group.

Several treaties were signed after the Royal Proclamation and before Confederation in 1867. These include the Upper Canada Treaties (1764 to 1862) and the Vancouver Island Treaties (1850-1854). Under these treaties, the First Nations surrendered interests in lands in areas of what are now Ontario and British Columbia, in exchange for certain other benefits, that could include reserves, annuities or other types of payment, and certain rights to hunt and fish.

Between 1871 and 1921, the Crown entered into treaties with various First Nations that enabled the Canadian government to actively pursue agriculture, settlement and resource development of the Canadian West and North. Because they are numbered 1 to 11, the treaties are often referred to as the “Numbered Treaties.” The Numbered Treaties cover Northern Ontario, Manitoba, Saskatchewan, Alberta, and portions of the Yukon, the Northwest Territories and British Columbia.

Under these treaties, the First Nations who occupied these territories ceded vast tracts of land to the Crown. In exchange, the treaties provided for such things as reserve lands and other benefits like agricultural equipment and livestock, annuities, ammunition, gratuities, clothing and certain rights to hunt and fish. The Crown also made some promises regarding the maintenance of schools on reserves, or the provision of teachers or educational assistance to the First Nation parties to the treaties. Treaty No. 6 included the promise of a medicine chest.

Comprehensive land claim settlements deal with areas of Canada where Aboriginal people’s claims to Aboriginal rights have not been addressed by treaties, or other legal means. The first of these modern day treaties was the James Bay and Northern Quebec Agreement, signed in 1975. To date, the federal government has settled 14 comprehensive claims with Aboriginal people in Canada.

In Gathering Strength – Canada’s Aboriginal Action Plan, announced January 7, 1988, the Government of Canada affirmed that both historic and modern-day treaties would continue to be key elements in the future relationship between Aboriginal people and the Crown. The federal government believes that the treaties, and the relationship they represent, can guide the way to a shared future. The continuing treaty relationship provides a context of mutual rights and responsibilities that will ensure Aboriginal and non-Aboriginal people can together enjoy Canada’s benefits.

The federal government is seeking the views of groups of Treaty First Nations on how the historic treaties and treaty issues can be understood in contemporary terms. These discussions allow the parties to develop a common understanding of the issues and consider ways to move into a relationship oriented to the future. Since many important treaty provisions are of direct interest to them, provincial governments will also have an important role in this process.

Canada negotiates treaties for three principle reasons – legal, economic and social.
Section 35 of the Constitution Act, 1982 recognizes and affirms the existing aboriginal rights of the aboriginal peoples of Canada, but it does not identify the nature, scope or extent of those rights.

As the Constitution is silent on the nature, scope and extent of aboriginal rights, and because the court decisions have not resulted in a clear definition of aboriginal rights, legal disputes have arisen over these issues. The courts have, however, clearly indicated that when dealing with aboriginal rights, they are to be regarded as use, site and group specific. This means that wherever the court considers issues of aboriginal rights, it does so in the context of the particular facts and the particular group before it. Accordingly, while some general principles can be drawn from case law, no definitive conclusion as to the nature, scope and extent of aboriginal rights can be discerned from a reading of these cases in areas, which have not been covered by Treaties.

This leaves much uncertainty with respect to land and resource use. Resolving this uncertainty can be pursued by litigation or negotiation.

Courts have endorsed negotiations as the best way to resolve land claims and judges have frequently instructed parties to seek a negotiated settlement.

Unresolved claims to land and resources have hindered some major investments. For example, there have been a number of cases where permits and licenses for resource development having been granted, First Nations have protested the granting of these permits in their claimed territories by taking their case to the courts and petitioning for an injunction to stop development. Such injunctions have been granted, with ensuing work stoppages, job losses and reduced investment.

The extent of such lost opportunities was examined in a 1990 Price Waterhouse study in British Columbia. This study estimated that over $1 billion and 1,500 jobs had been lost in the forestry and mining sectors alone as a result of disputes over land claimed by aboriginal people in British Columbia.

The socio-economic conditions of aboriginal communities lag behind other communities in Canada, as evidenced by higher rates of alcoholism and suicide, and lower levels of education and health. Canadians have indicated that they would like to see improvement in these conditions.

It is expected that the conclusion of treaties will provide First Nations who now do not have Treaties with the capacity to identify and implement their own solutions to difficult social problems.

Treaty making takes time. The Treaty process is intended to fundamentally change the relationship between Aboriginal people, the province or territory and Canada. A relationship that has not been satisfactory for several hundred years. In negotiations, representatives of two different cultures set out to achieve a common understanding. In the beginning of negotiations, there is always suspicion and mistrust on both sides. Often, the Aboriginal party feels that governments have a history of making decisions affecting them without consultation.
This absence of trust must be addressed before serious negotiations are able to move forward. Good faith can only be built slowly.

The issues under negotiations are very complex, and are not easily resolved. The Nisga’a Final Agreement for example, in both official languages of Canada, exceeds 1500 pages. Every word, every punctuation mark was negotiated.

The subject matter are also very complex. The Treaties deal with capital transfer. In the case of the Inuit of Nunavut, it amounted to $1.17 billion paid over 15 years, and for the Nisga’a Tribal Council, $190 million. Also matters of land quantum, location, minerals, oil and gas rights, forestry rights, wildlife and fish, migratory birds, gathering, land use planning, environment protection, resource revenue sharing, cultural artifacts including repatriation, archaeology, ethnography, water, dispute resolution and expropriation of settlement lands. These are just an example of some of the complex issues covered by Treaties.

Negotiations are not only time consuming but costly. Canada for example in British Columbia along between 1993 to 2002 have spent approximately $197.6 million. The Inuit in the Nunavut settlement borrowed from Canada, approximately $40 million, and the Nisga’a Tribal Council borrowed $50.3 million, in order to complete their Treaty negotiations.

In 1995, Canada recognized the inherent right of self-government as an existing right within Section 35 of the Constitutional Act, 1982. Canada has developed an approach to implement the right that focuses on reaching practical and workable agreements on how self-government will be exercised, rather than trying to define it in abstract terms.

The inherent right of self-government does not include a right of sovereignty in the international law sense, and it will not result in sovereign independent Aboriginal states. It is to be negotiated within the constitutional framework of Canada.

The approach taken to date on self-government does not provide a Aboriginal Government exclusive law making authority, but the Aboriginal government would operate concurrently with federal and provincial laws, like other jurisdictions in Canada where Canadians are subject to federal, provincial and municipal or regional laws simultaneously.

Where more than one law applies, it is necessary to negotiate rules to set out what happens in the case of conflict or inconsistencies between those laws. The relationship will be determined by specific rules of priority, which must be negotiated.

A wide range of authorities and jurisdictions are negotiated under self-government such as citizenship, language and culture, property, public order, peace and safety, employment, traffic, solemnization of marriage, child and family, social and health services, child custody, adoption, education, police services, courts, taxation and fiscal arrangements – adding to the complexity of the negotiations.

Having agreed to all of this, there is still one more step to negotiate. The Implementation Plan. The parties agree to a plan on how the treaty will be implemented. It sets out when and how the various provisions of the Treaty will come into effect. It sets out who does what and when, and how much the governments will spend on implementation. Plans are usually for 10 years, with provisions to re-negotiate a further term. It is hoped that this will help to avoid disputes in the future.

Presently, negotiations are not “rights” based. In other words, there is no recognition that rights in fact exist. The negotiations are carried on, on a “without prejudice” basis so that the parties can speak openly and frankly. It is a voluntary process and the Aboriginal party is free to withdraw at anytime and pursue other options such as litigation.

Negotiations may be time consuming, and costly, but they are more likely to end with all parties achieving what they consider to be a fair and equitable outcome. Litigation is also time consuming and costly, but you in the end have a “winner” and a “loser” and is not the best way to build a new relationship.

As our Supreme Court of Canada said in the Delgamuukw decision, “let us face it, we are all here to stay.”

W. Thomas Molloy, Q.C. MacPherson Leslie & Tyerman LLP, 1500-410 –22nd Street East, Saskatoon, Saskatchewan, S7K 5T6 – Telephone: (306) 975-7117, Fax: (306) 975-7145
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