Federal Comprehensive Claims Policy Reform & International Engagement on Aboriginal Title By Russell Diabo National Claims Research Workshop October 4-6, 2016 Musqueam Territory, Richmond, BC
Federal Comprehensive Claims Policy Reform From Harper to Trudeau 2013-2016
3 Classes of Aboriginal Title First Nations • The federal implementation of Canada's Comprehensive Claims Policy (CCP) has led to three main classes of Aboriginal Title First Nations: i. First Nations that have entered in final comprehensive claims agreements; ii. First Nations that were or have been in comprehensive claims negotiations; and, iii. First Nations that have never agreed to negotiate under the federal CCP.
Comprehensive Claims Settlements
Comprehensive Claims & Self-Government Negotiations
BCTC Negotiations
PM-AFN Meeting Jan. 11, 2013
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Canada-AFN CC-SOC Process • Two Senior Oversight Committees were agreed to: 1) Historic Treaties and 2) Comprehensive Claims. • AFN withdrew from Historic Treaty SOC. • Comprehensive Claims SOC was taken over on AFN side by actively negotiating representatives and excluded legitimate non-negotiating representatives. • Both SOC processes ended in Dec. 2013. AFN-SCA didn’t formally adopt CC-SOC Report by BC Vice-Chief. 8
2014 Federal Interim CCP & Section 35 Policy • In September 2014, the federal Minister of Aboriginal Affairs, Bernard Valcourt unilaterally issued an “interim” policy entitled “Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights” This "interim" policy does not acknowledge the Supreme Court of Canada Tsilhqot'in Nation decision of June 2014, and was the basis of the Douglas Eyford "engagement" process. • The “interim” policy is merely a restatement of previous federal section 35 policies regarding extinguishment of Aboriginal Title and municipalization of Indian Bands. 9
FEDERAL “CORE MANDATES” = KEY GOALS/CLAUSES Extinguishment (modification) of Aboriginal Title; Legal release of Crown liability for past violations of Aboriginal Title & Rights; Elimination of Indian Reserves by accepting lands as private property (fee simple); Removing on-reserve tax exemptions;
FEDERAL “CORE MANDATES” = KEY GOALS/CLAUSES Respect existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation); Acceptance of existing federal & provincial laws; Program funding on a formula basis being linked to own source revenue;
Extinguishment of Aboriginal Title – Legal Techniques
certainty and finality; modified and released; and Non-assertion of rights.
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Cash & Land •Cash & Land: The Comprehensive Claims Formula: $25,600 per head 9.3 Hectares (23 acres) per head
Eyford Report on Comprehensive Claims Policy Released April 2, 2015
Eyford Report – Ministerial Special Representative on Comprehensive Claims Douglas Eyford
• Douglas Eyford appointed Ministerial Special Representative in Sept. 2014. • Eyford Engagement process announced Sept. 2014. • Engagement Report with 47 Recommendations released on April 2, 2015. 15
EYFORD REPORT
• 14 Comprehensive land claims negotiations outside of British Columbia. • 8 Trans-boundary (NWT & Nunavut) negotiation tables. • 53 Negotiation tables in the British Columbia treaty process.
EYFORD REPORT • Most Recommendations deal with process issues regarding First Nations in negotiations or settlements under the CCP. 13. Canada should focus resources on productive negotiating tables, acknowledge where it is unable to make progress with other groups, and identify groups whose interests would be better suited to other reconciliation arrangements. 21. Canada, the First Nations Summit, and the government of British Columbia should consider changes to the mandate of the British Columbia Treaty Commission to enable the Commission to more effectively assess and facilitate progress in treaty negotiations and, where the conclusion of a treaty is unlikely, assist the parties in exploring other arrangements to advance reconciliation.
Eyford Report Alternative to CCP • Two Recommendations #8 and #11 offer an alternative to CCP: • #8 Canada should continue its discussions with the Tsilhqot'in National Government about a range of bilateral or tripartite agreements outside the BC treaty process. • #11 Canada should develop an alternative approach for modern treaty negotiations, one informed by the recognition of existing Aboriginal rights, including title, in areas where Aboriginal title can be conclusively demonstrated.
Liberal Indigenous Platform Commitments 2015 Election
Justin Trudeau’s 2015 Commitments • Immediately re-engage in a renewed nation-to-nation process with Indigenous Peoples. • Prioritize developing—in full partnership with First Nations—a Federal Reconciliation Framework. This framework will include mechanisms to advance and strengthen self-government, address outstanding land claims, and resolve grievances with both existing historical treaties and modern land-claims agreements. • Enact the 94 recommendations of the Truth and Reconciliation Commission, including the adoption of the United Nations Declaration on the Rights of Indigenous Peoples.
Justin Trudeau’s 2015 Commitments • Recognize and respect Aboriginal title and rights in accordance with Canada’s Constitutional obligations, and further those enshrined in the UN Declaration on the Rights of Indigenous Peoples. • Immediately lift the two percent cap on funding for First Nations programs, and establish a new fiscal relationship with First Nations. • The Liberal Party of Canada has endorsed the recommendations in the Eyford report in their entirety and is committed to working in partnership with First Nations to fully implement them. We will look to First Nations’ leadership for guidance when making decisions on where investments should be made.
Justin Trudeau’s 2015 Commitments • Undertake a full review of regulatory law, policies, and operational practices, in full partnership and consultation with First Nations to ensure that the Crown is fully executing its consultation, accommodation, and consent obligations, including on resource development and energy infrastructure project reviews and assessments, in accordance with our constitutional and international human rights obligations.
Secret INAC “Exploratory Tables” • Indigenous and Northern Affairs Canada (INAC) has opened around 20 “exploratory tables” – as the department is calling them – with indigenous leaders on potential self-government and land agreements, said Joe Wild, senior assistant deputy minister for treaties and aboriginal government, during an exclusive interview with iPolitics. • And critically, there are dozens of regional groups that represent nations outside of any formal political or legal process. While these likely play a key role in the exploratory tables — especially in places where dozens of communities consider themselves to be part of one nation — INAC will not divulge who sits on each table. • The exploratory tables, an arena for these new interpretations of section 35 to take form, could impact treaty negotiations, self-government powers and resource management across Canada — among other things under Wild’s responsibility. Source: Joe Wild, senior Assistant Deputy Minister for treaties and aboriginal government INAC June 4, 2016, ipolitics Article
Bill C-262: An essential framework for implementation of the United Nations Declaration on the Rights of Indigenous Peoples • Bill C-262 sets out the key principles that must guide implementation of the Declaration. • Bill C-262 provides clear public affirmation that the standards set out in the UN Declaration have “application in Canadian law.” • Bill C-262 would require a process for the review of federal legislation to ensure consistency with the minimum standards set out in the UN Declaration. • Bill C-262 requires the federal government to work with Indigenous peoples to develop a national action plan to implement the UN Declaration. • Bill C-262 provides transparency and accountability by requiring annual reporting to Parliament on progress made toward implementation of the Declaration. - The Coalition for the Human Rights of Indigenous Peoples
Liberal’s “Canadian Definition” of UNDRIP • “the government is in the process of providing a Canadian definition to the declaration”. • “The government is currently in the process of providing greater clarity to these definitions”. • “We are going to get there by following a process and a regulatory regime”. Source: Jim Carr to Standing Committee on Indigenous and Northern Affairs April 21, 2016.
Liberal’s “Canadian Definition” of UNDRIP • On APTN Wilson Raybould said the government will work with First Nations who are ready to take on self-governance…She said that this could be achieved in a variety of ways, from “sectoral government initiatives” to “bilateral self government agreements” to “comprehensively negotiating a treaty under the modern treaty process.” Source: APTN Nation to Nation April 29, 2016 • “There is a need for a national action plan in Canada, something our government has been referring to as a Reconciliation Framework…And we do not need to re-invent the wheel completely. …Within Canada, there are modern treaties and examples of self-government – both comprehensive and sectoral. There are regional and national Indigenous institutions that support Nation rebuilding – for example in land management and financial administration.” Source: JWR at UNPFII May 9, 2016
Liberal’s “Canadian Definition” of UNDRIP • “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.” • “By adopting and implementing the Declaration, we are excited that we are breathing life into Section 35 and recognizing it now as a full box of rights for Indigenous peoples in Canada. Canada believes that our constitutional obligations serve to fulfil all of the principles of the declaration, including “free, prior and informed consent.” We see modern treaties and selfgovernment agreements as the ultimate expression of free, prior and informed consent among partners.” Source: Carolyn Bennett to UNPFII May 10, 2016.
Liberal’s “Canadian Definition” of UNDRIP • “there is no simple answer. It is, unfortunately, not as simple as just ripping up the Indian Act… this is not a practical option – which is why simplistic approaches, such as adopting the UNDRIP as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work required to actually implement it…Ultimately, the UNDRIP will be articulated through the constitutional framework of section 35. Source: JWR to AFN AGA July 12. 2016.
Liberal’s “Canadian Definition” of UNDRIP • “…with respect to the UNDRIP, it is important to appreciate how come it cannot be simply incorporated, word for word, into Canadian law…the federal government simply does not have the jurisdiction to unilaterally address all of the minimum standards and principles set out in the Declaration. Many issues will benefit from a national approach that reflects federal, provincial and territorial, and Indigenous governments each playing their parts…the implementation of the Declaration has to take into account our specific constitutional and legal context here in Canada. That includes our federal system, our Constitution – particularly Section 35 of the Constitution Act, and the Charter of Rights and Freedoms…Moreover, how we, as a society, choose to balance the various rights and interests protected by our Constitution, set out in our Charter of Rights, or expressed in the UN Declaration, is also a decision we have to make together. Source: JWR to BC Cabinet & FN Leaders Gathering September 7, 2016
What Do We Do About It? • After the Delgamuukw decision the AFN Delgamuukw Strategic Implementation Committee recommended a six point strategy to change the Federal Comprehensive Claims Policy: • Public Education • Political/Negotiation/Pre-Litigation Strategy • Litigation • Policy Development • Direct Action/Assertion of Rights • International Campaign.
International Engagement on Aboriginal Title • Work internationally, with human rights & environmental protection institutions (such as the United Nations) non-governmental organizations, and economic institutions (such as the WTO, the World Bank, bond rating agencies), to publicize Canada’s record on Aboriginal title and highlight the economic consequences of the status quo. Nonrecognition of Aboriginal title is a hidden subsidy for resource developers.
International Engagement: Important Issues • Internationally recognized standards can help implement indigenous governance over lands and resources • International Standards can be used to fill the gap/constitutional breach (courts can reach out to them and it can be used to exercise pressure esp. regarding remedies) • Consent –not just procedural but substantive and jurisdictional component: Indigenous Peoples as decision-makers regarding access to lands and resources (not just consultation –where government remains the final decision maker) • There are important internationally recognized standards, including under: - international human and indigenous rights law - International environmental law - International trade law (subsidy arguments)