Download PDF

COMPREHENSIVE APPROACHES TO AGREEMENTS AND TREATIES IN CANADA

Overview

A federal policy for the settlement of aboriginal land claims in Canada was established in 1973 (here, 'aboriginal' refers to First Nation, Meti and Innu peoples). The policy divides claims into two broad categories - specific (which refer to breaches and other matters relating to existing treaties) and comprehensive.

Comprehensive land claims are based on the assertion of continuing aboriginal title to lands and natural resources. The federal policy stipulates that land claims may be negotiated with Aboriginal groups in areas where claims to Aboriginal title have not been addressed by treaty or through other legal means.

The thrust of the 1973 Comprehensive Claims Policy, which was reaffirmed in 1981 [and amended in 1986], was to exchange claims to undefined aboriginal rights for a clearly defined package of rights and benefits set out in a settlement agreement.

Under the Government of Canada's 1995 Inherent Right Policy, self-government arrangements may be negotiated simultaneously with lands and resources as part of comprehensive claims agreements.

In Gathering Strength, Canada's Aboriginal Action Plan announced on January 7, 1998, the Government of Canada affirmed that treaties, both historic and modern, will continue to be a key basis for the future relationship between aboriginal peoples and the Crown.

(Source: Canada, Comprehensive Claims Policy and Status of Claims, February 2003.)

Comprehensive Claims

Comprehensive land claims are based on the assertion of continuing aboriginal rights and claims to land that have not been dealt with by treaty or other means. Comprehensive land claims negotiations address concerns raised by aboriginal peoples, governments and third parties about who has the legal right to own or use the lands and resources in areas under claim.

The process of negotiating the settlement of comprehensive claims, which is known as modern-day treaty making, clarifies access and ownership to land and resources and spurs economic development on Indigenous lands and in surrounding communities. Comprehensive claims settlements may also include self-government arrangements.

(Source: Canada, Claims and Indian Government Sector, Comprehensive Claims Branch)

Rights and benefits in comprehensive settlements 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;
a role in the management of heritage resources and parks in the settlement area.

(Source: Comprehensive Claims (modern treaties) in Canada, 1996)

Self Government Agreements

Self-government agreements set out practical and workable arrangements for aboriginal people to implement the inherent right of self-government and assume responsibility and control over matters internal to their communities and integral to their unique cultures, identities, traditions, languages and institutions.

(Source: Canada, Claims and Indian Government Sector, Self-Government Branch)

Legislation

Acts administered by the Department of Indian Affairs and Northern Development

Resources

Alfredsson, Gudmundur, 'The right of self-determination and Indigenous peoples', in Christian Tomuschat (ed.), Modern Law of Self-Determination, Martinus Nijhoff Publishers, Dordrecht, 1993.

Asch, Michael, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equity and Respect for Difference. Vancouver: UBC Press, 1997.

Barsh, Russel Lawrence, and James Youngblood Henderson. "Aboriginal Rights, Treaty Rights and Human Rights: Indian Tribes and Constitutional Renewal." Journal of Canadian Studies 17, no. 2 (1982): 80-1.

Barsh, Russel, and James Youngblood Henderson, 'International context of Crown-Aboriginal treaties in Canada', Royal Commission on Aboriginal Peoples, Research Report, May 12, 1995.

Bartlett, Richard and Jill Milroy (eds.), Native Title Claims in Canada and Australia, Centre for Commercial and Resources Law, University of WA, Perth, 1999.

Bartlett, Richard, 'Current Aboriginal sovereignty in Canada and Australia', Australian-Canadian Studies, vol. 11, no. 1&2, 1993, pp.1-16.

Bartlett, Richard H. Aboriginal Water Rights in Canada: A Study of Aboriginal Title to Water and Indian Water Rights. Calgary: Canadian Institute of Resources Law, 1988.

Bartlett, Richard H. "The Fiduciary Obligation of the Crown to the Indians." Saskatchewan Law Review 53 (1989): 301-25.

Bartlett, Richard H. "The Content of Aboriginal Title and Equality Before the Law." Saskatchewan Law Review 61 (1998): 377-91.

Bell, C. "Aboriginal and Treaty Rights." Constitutional Forum 2 (1990): 1-4.

Bell, C. "New Directions in the Law of Aboriginal Rights." Canadian Bar Review 77 (1998): 36-72.

Benson, Marjorie L., Isobel H. Findlay and James (Sákéj) Youngblood Henderson,

Aboriginal Tenure in the Constitution of Canada, Carswell, Toronto, 2000.

Boer, Ben, Donna Craig, and B.J. Richardson, 'Indigenous peoples and environmental management: A review of Canadian regional agreements and their potential application to Australia - part 1', Environmental and Planning Law Journal, vol. 11, no. 4, 1994, pp.320-343.

Boer, Ben, Donna Craig, and B.J. Richardson, 'Indigenous peoples and environmental management: A review of Canadian regional agreements and their potential application to Australia - Part 2', Environmental and Planning Law Journal, vol. 11, no. 5, 1994, pp.357-381.

British Columbia Claims Task Force, The Report of the British Columbia Claims Task Force, BC Ministry for Aboriginal Affairs, Vancouver, June 21, 1991.

British Columbia Treaty Commission, Understanding the BC Treaty Process, BCTC, Vancouver, September 1997.

Boldt, Menno. The Quest for Justice: Aboriginal Peoples and Aboriginal Rights. Toronto: University of Toronto Press, 1987.

Borrows, John A. "With or Without You: First Nations Law." McGill Law Journal 41 (1996): 629-65.

Borrows, John A. "Domesticating Doctrines: Aboriginal Peoples After the Royal Commission." McGill Law Journal 46, no. 3 (2001): 616-61.

Borrows, John, and Leonard I. Rotman. "The Sui Generis Nature of Aboriginal Rights: Does It Make a Difference." Alberta Law Review 13 (1998): 9-45.

Brown, R. A. "Treaty Rights and the Saskatchewan Treaty Governance Process." Canadian Tax News 48 (2000): 1183-92.

Cairns, Alan C. Citizens Plus: Aboriginal Peoples and the Canadian State. Vancouver: UBC Press, 2000.

Carswell. Consolidated Native Law Statutes, Regulations, and Treaties 2001. Scarborough: Carswell, 2001.

Clark, Bruce A. Indian Title in Canada. Toronto: Carswell, 1987.

Cleland, Charles E. "Indian Treaties and American Myths: Roots of Social Conflict Over Treaty Rights." Native Studies Review 6, no. 2 (1990): 81-88.

Coates, Kenneth S. Aboriginal Land Claims in Canada: A Regional Perspective. Mississauga: Copp Clark Pitman Ltd., 1992.

Coates, Kenneth S. The Marshall Decision and Native Rights. Montreal: McGill-Queen's University Press, 2000.

Constitutional Task Force on Treaties and Treaty Rights. Report of the Bilateral Constitutional Task Force on Treaties and Treaty Rights. Ottawa: Assembly of First Nations, 1987.

Cooper, Barry. "Defining the Larger Context of Aboriginal Rights." Canadian Journal of Law 5 (1990): 127-40.

Cumming, Peter A. Indian Rights: A Century of Oppression. Toronto: Association in Support of Native Peoples, 1969.

Cumming, Peter A., and Neil H. Mickenberg. Native Rights in Canada. 2nd ed. Toronto: Indian-Eskimo Association of Canada in association with General Pub. Co., 1972.

Dacey, Alison F. Treaty 3: The Failure of the Canadian Government to Protect Native Treaty Rights 1905-20. 1993.

DIAND. Canadian Indian Rights and Treaties. Ottawa: Treaties and Historical Research Centre, Department of Indian Affairs and Northern Development, 1974.

Drees, Laura Meijer. "Citizenship and Treaty Rights: The Indian Association of Alberta and the Canadian Indian Act, 1946-1948." Great Plains Quarterly 20, no. 2 (2000): 141-58.

Dyck, Noel. "The Negotiation of Indian Treaties and Land Rights in Saskatchewan." In Aborigines, Land and Land Rights, ed. Nicolas Peterson and Marcia Langton, 405-15. Canberra: Australian Institute of Aboriginal Studies, 1983.

Elliott, David W. The Legal Status of Aboriginal and Treaty Rights in Section 35 (1) of the Constitutional Act, 1982. Ottawa: Canadian Bar Association, 1991.

Evans, Denise. "Superimposed Nations: The Jay Treaty and Aboriginal Rights." Dalhousie Journal of Legal Studies 4 (1995): 215-30.

Grammond, Sebastien, 'Aboriginal treaties and Canadian law', Queens Law Journal, no. 20, 1994, pp.57-87.

Henderson, James [sakej] Youngblood, 'Empowering Treaty Federalism', Saskatchewan Law Review, vol. 158, 1994, pp.241-325.

Ivanitz,Michelle 'The Emperor has no Clothes: Canadian Comprehensive Claims and their Relevance to Australia', Land, Rights, Laws: Issues of Native Title, Regional Agreements Paper No.4.

Richardson, Miles, 'Review of the treaty process', in Speaking Truth to Power II, a Treaty Forum, Law Commission of Canada, Vancouver, 2001.

Russell, Peter, review of Michael Asch (ed.), Aboriginal and Treaty Rights In Canada: Essays on Law, equity and respect for Difference, UBC Press, Vancouver, 1997, in Alberta Law Review, vol. 36, no. 1, 1997, pp.295-300.

Tennant, Paul, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia 1849-1989, University of British Columbia Press, Vancouver, 1990.

Tully, James, 'Reconsidering the BC treaty process', in Speaking Truth to Power: a treaty forum, Law Commission of Canada, Vancouver, 2000, pp.3-18.

(Some of this bibliography sourced from: INAC http://www.ainc-inac.gc.ca/pr/trts/hti/bib/rig_e.html )

Useful Websites

Aboriginal Canada
This is a portal site that aims to be 'the single window to Canadian Aboriginal on-line resources, contacts, information, and government programs and services'.

Agreements, Treaties and Negotiated Settlements Project
This website includes an extensive database of information and resources relating to agreements, treaties and negotiated settlements with Indigenous Peoples in settler states.

British Columbia Treaty Commission
The Treaty Commission is an independent body responsible for facilitating treaty negotiations among the governments of Canada, British Columbia and First Nations in British Columbia.

Indian and Northern Affairs Canada
INAC has responsibility for meeting the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Northerners