Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights

Principles respecting the recognition and reconciliation of Section 35 rights

The Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. Aboriginal rights recognized and affirmed by Section 35 (1) are best understood as, firstly, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive

Aboriginal societies, and as, secondly, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of Aboriginal rights must be directed at fulfiling both of these purposes^{Footnote 1}. This provides the constitutional framework for reconciling the pre-existence of Aboriginal societies with the sovereignty of the Crown which requires processes for achieving reconciliation. Accordingly, Canada acknowledges the importance of ensuring that its relationship with Aboriginal peoples is based on mutual recognition and respect having regard to the following principles of reconciliation that flow from Section 35.

1. Canada recognizes that reconciliation is a fundamental objective of Section 35 of the Constitution Act, 1982.

   Reconciliation is an ongoing process through which Aboriginal peoples and the Crown work cooperatively to establish and maintain a mutually respectful framework for living together in Canada with a view to fostering strong, healthy and sustainable Aboriginal communities.

   Reconciliation involves reconciling the pre-existence of Aboriginal societies with the sovereignty of the Crown and respectfully balancing Aboriginal rights with broader societal interests. Reconciliation requires compromise and good faith by all parties.

   Reconciliation frames the Crown's actions in relation to Section 35 rights and informs the Crown's broader relationship with Aboriginal peoples.

   Canada's approach to reconciliation is informed by legal principles articulated by the courts and by negotiation and dialogue with Aboriginal peoples and provincial and territorial governments.

2. Canada recognizes that Aboriginal peoples have existing Section 35 rights and it is on this basis that reconciliation processes occur. Section 35 rights include both Aboriginal rights, including Aboriginal title and treaty rights.

   The Courts have stated that there is a spectrum of Aboriginal rights and specific legal tests for proof of Aboriginal rights, including Aboriginal title.

   The Government of Canada recognizes that the inherent right of self-government is an existing Aboriginal right within the meaning of Section 35.

3. Canada recognizes that the reconciliation of Section 35 rights is not limited to comprehensive modern treaties, but may include other forms of agreements and constructive arrangements, without the need for extinguishment.

   In areas of federal jurisdiction, Canada recognizes that the use of reconciliation processes could lead to modern treaty arrangements or other constructive arrangements including, but not limited to, non-treaty arrangements, contracts, legislation, memoranda of understanding and consultation and accommodation processes.

   Through negotiations, with give-and-take on all sides, modern treaties and other constructive arrangements can provide predictability and clarity for Aboriginal peoples and governments regarding their respective rights to ownership, use and management of lands and resources, as well as predictability and clarity for the exercise of Aboriginal self-government within the Canadian federation.

4. Canada recognizes that the honour of the Crown is a guiding principle for the conduct of the federal Crown in all federal processes for achieving reconciliation with respect to Section 35 rights.

   The Government of Canada recognizes the importance of upholding the honour of the Crown, which requires Canada and its departments, agencies and officials to act with honour, integrity and fairness in all its dealings with Aboriginal peoples. The honour of the Crown gives rise to different duties in different circumstances.

5. Canada recognizes that the honour of the Crown gives rise to the duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that may adversely affect potential or established Aboriginal or treaty rights.

   Canada has established guidelines for federal officials to fulfill the duty to consult. The Crown's efforts to consult and where appropriate accommodate are to be consistent with the overriding objective of reconciliation.

6. Canada recognizes the importance of implementing modern treaties in a manner which upholds the honour of the Crown.

   Reconciliation requires that modern treaty provisions are to be interpreted in a reasonable and purposive manner and in accordance with the principles enunciated by the courts in order to find the common intention of the parties, and with due regard for terms negotiated by the parties.

   Federal departments and agencies need to coordinate their activities to implement treaties in a timely and diligent manner.

7. Canada recognizes that reconciliation requires justification for any infringement of Section 35 rights.

   Canada acknowledges that any infringement of Aboriginal rights requires a justification in accordance with standards established by the Canadian courts and must be attained in a manner consistent with the honour of the Crown and the objective of reconciliation.

8. Canada recognizes that reconciliation can lead to economic prosperity.

   Reconciliation promotes a secure climate for economic and resource development that can benefit all Canadians and balances Aboriginal rights with broader societal interests. Reconciliation arrangements can enable Aboriginal peoples to have fair and ongoing access to lands and resources to support their traditional economies and to share in the wealth generated from those lands and resources as part of the broader Canadian economy.

9. Canada recognizes the importance of working jointly with Aboriginal groups to identify timely and effective processes for the negotiation of modern treaties and other constructive arrangements that address Section 35 rights.

   Modern treaties have been and remain the primary means through which Aboriginal peoples and the Crown establish mutually agreed-upon frameworks for reconciliation. However, parties to modern treaty negotiations may have differing views on the nature, scope and location of Aboriginal rights in any particular context.

   Modern treaties can provide an enduring framework for ongoing relationships that are constitutionally protected.

   During the course of modern treaty negotiations, other constructive arrangements may be considered, including but not limited to, interim measures, treaty-related measures and incremental treaty arrangements, which promote cooperative relations, Aboriginal capacity for modern treaty implementation and predictability and clarity in relation to land and resource management.

   It is recognized that there are differences as to how modern treaty negotiations may be conducted across Canada, accounting for regional diversity, Aboriginal perspectives and the interests of provincial and territorial governments.

10. Canada recognizes that reconciliation is an ongoing process that occurs in the context of evolving Crown-Aboriginal relationships.

    Canada recognizes that reconciliation processes including processes for negotiation and implementation of treaties, non-treaty agreements and other constructive arrangements will need to adapt over time in the context of evolving Crown-Aboriginal relationships.

    Modern treaties should be capable of evolution and provide predictability for the future as to how provisions may be changed and in what circumstances.

    Matters that must be adaptable to change may be set out in companion non-treaty agreements.

Objectives of Negotiations

Canada remains committed to working together through negotiations to address Section 35 Aboriginal rights with the goal of achieving fair and equitable agreements and an enduring reconciliation of rights and interests.

Treaties remain the most comprehensive arrangements that can address Section 35 Aboriginal rights. Treaties establish a mutually agreed-upon and enduring framework for reconciliation and ongoing relationships between the Crown and Aboriginal people. The rights set out in treaties are precise and constitutionally protected. As a result:

• treaties provide lasting certainty regarding the parties' respective rights to ownership, use and management of lands and resources and other rights addressed in treaties, through a fair and enduring settlement of Aboriginal rights claims; and
• self-government arrangements in treaties empower Aboriginal communities to govern their own affairs in a manner which provides predictability and clarity for intergovernmental relations and the application of laws.

Canada acknowledges that not all Aboriginal groups are able to or interested in negotiating a treaty. Reconciliation may include other forms of agreements and arrangements. Examples of arrangements with groups outside of the treaty negotiation process can include consultation protocols, fishery program arrangements, as well as other arrangements related to Section 35 Aboriginal rights. These arrangements can be an effective way to address Section 35 rights in advance of a treaty or as an alternative to a treaty.

Agreements intended to address Section 35 Aboriginal rights will be negotiated within the framework of the Canadian Constitution, and will confirm the application of the Charter of Rights and Freedoms to Aboriginal governments. Such agreements must be equitable to Aboriginal people and all Canadians.

The participation of provincial/territorial governments in the negotiation of treaties, self-government arrangements and/or non-treaty arrangements, in areas that fall within their jurisdiction is essential to any of these negotiations.

Section 35(4) of the Constitution Act, 1982 provides that Aboriginal and treaty rights recognized and affirmed in Section 35 "are guaranteed equally to male and female persons." This guarantee is respected by Canada in both the negotiation and implementation of treaties, self-government arrangements and/or non-treaty arrangements.

The general public interest and third-party interests will be respected in the negotiation of any agreements/arrangements and agreements will balance the rights and interests of all.

Lands and Resources Treaty Negotiations

Negotiated treaties that comprehensively address land and resources may include the following subject matters as part of the final agreement:

1. Certainty
2. Certainty with respect to Non-Land-Related rights
3. Incremental Approaches to Treaty Negotiations
4. Lands
5. Treaty Settlement Lands
6. Shared Territories and Overlapping Claims
7. Trans-Boundary Claims
8. Offshore Areas
9. Wildlife
10. Subsurface Rights
11. Resource Revenue Sharing
12. Environmental Management
13. Capital Transfer
14. Management of Settlement Assets
15. Programs
16. Tax Matters
17. Beneficiaries to the Agreement
18. Dispute Resolution

1. Certainty

   The concept of certainty over lands and resources is central to the purpose of treaty negotiations, which provides a respectful framework for reconciliation.

   The parties involved in treaty negotiations often have different views and perspectives about the location, nature and extent of the existing Section 35 rights that a specific Aboriginal group holds and can exercise.

   Canada seeks to achieve certainty over unresolved Aboriginal rights claims, in relation to land and resources and other rights addressed in the treaty by negotiating agreements that provide for a respectful reconciliation of the rights of the Aboriginal people with the rights of other Canadians. The better the job that negotiators do in comprehensively setting out the terms of a new relationship based on the clearly defined rights and obligations of each party, the greater the certainty for future generations.

   This reconciliation respects the continuation of existing Section 35 Aboriginal rights and their coexistence with new treaty rights post treaty, in a legally effective manner that supports the parties' ability to rely on the negotiated agreement.

   To this end, a key item negotiated in treaty negotiations is the certainty or legal reconciliation technique. This legal technique reconciles the coexistence of existing Section 35 Aboriginal rights with treaty rights by enabling the continuation of the group's existing Section 35 Aboriginal rights while ensuring that, to the extent the continuing rights are inconsistent with the treaty, they cannot be used to undermine the agreement of the parties.

   Treaties will include clear processes for the amendment of these agreements, providing predictability for the future as to how the applicable provisions may be changed and in what circumstances.

2. Certainty with Respect to Non-Land-Related rights

   In addition to provisions dealing with lands and resources, treaties can also include self-government and other provisions, which may cover a range of non land related rights, such as jurisdiction over matters internal and integral to the Aboriginal community (ie. education) as well as cultural or other matters. Canada seeks certainty over non-land-related rights in the treaty. Canada supports options for achieving certainty with respect to non-land-related Aboriginal rights that are not addressed in the treaty through a process for bringing additional non-land-related rights into the treaty (where the parties agree).

3. Incremental Approaches to Treaty Negotiations

   Incremental approaches for addressing Section 35 rights provide a tool for building momentum towards completing a treaty or for addressing the interests of the parties related to Section 35 rights in situations where the conclusion of a comprehensive treaty is far off. Canada may enter into incremental treaty agreements on a tripartite basis, with the province/territory and the Aboriginal group, or on a bilateral basis, with the Aboriginal group, in areas of federal interest.

   Incremental approaches can: address Aboriginal interests while negotiations are ongoing; promote cooperative relations during treaty negotiations before a final agreement is reached; remove barriers to progress in negotiations; provide for the implementation of certain negotiated elements of a treaty in advance of a final, comprehensive treaty agreement and help prepare Aboriginal parties to implement treaties. These agreements can be considered at any stage of the broader treaty negotiations.

4. Lands

   Treaties will clearly identify the geographic area, outside of treaty settlement lands, where treaty rights are exercisable.

5. Treaty Settlement Lands

   Treaty settlement lands selected by Aboriginal parties for their continuing use should be asserted traditional lands that are currently used or occupied. Treaties may recognize that the ownership of treaty settlement lands is linked to the Aboriginal party's historic presence within their asserted traditional territory.

   Treaties will provide Aboriginal parties with secure title to treaty settlement lands. Treaties will include protections limiting expropriation of treaty settlement lands or seizure of treaty settlement lands. Treaty settlement lands give the Aboriginal group the ability to fully realize the economic potential of the land if they choose.

   Agreements will provide for public access to selected treaty settlement lands and for right-of-way for necessary public purposes. Access rights pertaining to transportation routes in and through the settlement area must also be provided for.

   Self-government treaty provisions set out the jurisdiction of Aboriginal governments over treaty settlement lands and their citizens and provide clarity with respect to the application of Aboriginal, federal and provincial or territorial laws on the settlement lands.

6. Shared Territories and Overlapping Claims

   Shared territory and overlap issues are situations in which more than one Aboriginal group has potential or established Aboriginal or treaty rights in the same geographical area.

   If left unresolved, shared territory and overlap issues can harm both the process of reconciliation between Canada and Aboriginal groups and the relationships among Aboriginal groups. The resolution of these overlaps is a key interest for all parties.

   Aboriginal groups are best placed to resolve shared territory and overlap disputes between themselves. Where there are competing claims to the same geographical area, Canada may consider options in advance of final treaty which support the reconciliation of section 35 rights and encourage Aboriginal groups to resolve the dispute. Canada continues to support Aboriginal groups' efforts to resolve shared territory disputes. Throughout the treaty negotiation process, Canada will consult with Aboriginal groups where there may be potential adverse impacts on asserted or established section 35 rights by a treaty.

7. Trans-Boundary Claims

   Where an Aboriginal group currently utilizes resources, in a province or territory, other than that in which its communities are located, the range of benefits available to the group outside its province or territory of residence will be determined by negotiation with the province or territory involved and consultation with any other Aboriginal groups with shared territory or overlapping claims.

8. Offshore Areas

   In many cases, the areas traditionally used by Aboriginal groups to pursue their way of life include offshore areas. In such cases, negotiations concerning harvesting rights in offshore areas will be conducted, to the extent possible, in accordance with the same principles as those which apply to lands. Participation in environmental management regimes and resource revenue-sharing arrangements may also be negotiated with respect to offshore areas.

9. Wildlife

   The continuing economic, social and cultural importance of hunting, fishing and trapping for many Aboriginal communities is recognized by the federal government. Accordingly, agreements may provide for preferential wildlife harvesting rights for beneficiaries. There may be exclusive harvesting rights exercised by beneficiaries on selected lands, or preferential rights for particular species throughout the settlement area or within specified parts of the settlement area. In all cases, agreements will clearly define terms by which beneficiaries will have access to wildlife resources.

   Unless otherwise provided for in agreements, laws of general application respecting hunting, fishing and trapping activities, including public safety and conservation measures, will apply to beneficiaries.

10. Subsurface Rights

    Subsurface resources fall within either federal or provincial jurisdiction. In areas of federal jurisdiction, subsurface rights on some federal Crown lands and on treaty settlement lands held by beneficiaries may be provided through agreements.

    Aboriginal ownership of subsurface rights close to their communities, or in critical wildlife habitat areas, may serve as a way to avoid land-use conflict in key areas. Such subsurface rights may also, in appropriate circumstances, provide the beneficiaries of the agreement with the opportunity and incentives to participate in and benefit from resource development.

    Holders of subsurface rights must have access to settlement lands, where necessary, for the exploration, development and production of resources. The exercise of such rights will be subject to fair compensation as determined through timely negotiations or by arbitration.

11. Resource Revenue Sharing

    Where the federal government has responsibility with respect to natural resources, it is prepared to negotiate resource revenue-sharing arrangements with Aboriginal groups. Such arrangements would provide a percentage of any federal royalties derived from the extraction of resources in a settlement area, including offshore areas.

    Where the federal government has responsibility, resource revenue-sharing arrangements will not provide resource ownership rights and will not result in the establishment of joint management boards to manage the subsurface and subsea resources. In addition, the federal government will maintain responsibility for resource revenue mechanisms and must maintain its ability to adjust the fiscal regime.

    Resource revenue sharing may be subject to limitations either by:

    • an absolute dollar; or
    • a time cap of not less than 50 years from the first payment of the royalty share (which arrangement will be renegotiable); or
    • a reducing percentage of federal royalties generated, if any.

    Any negotiations or arrangements between the federal and territorial governments regarding possible resource revenue sharing must respect any arrangements made in this regard through agreements. The federal government will consult affected Aboriginal groups regarding the implications for unresolved claims of any proposed federal-territorial arrangements on resource revenues.

12. Environmental Management

    Treaties will recognize particular Aboriginal interests in relation to environmental issues particularly as these issues relate to wildlife management and the use of water and land. Provision for Aboriginal input on this matter may be afforded through membership on advisory committees, boards and similar bodies or through participation in government bodies that have decision-making powers. Such arrangements must recognize that the government has an overriding obligation to protect the interests of all users, to ensure resource conservation, to respect international agreements and to manage renewable resources within its jurisdiction.

13. Capital Transfer

    The monetary component of an agreement may comprise various forms of capital transfers, including cash, resource revenue sharing, or government bonds.

    The amount will be clearly defined in the treaty. The amount of the capital transfer may be adjusted depending upon the other arrangements negotiated in treaties. For example, the amount of the capital transfer may be reduced in accordance with arrangements concerning resource revenue sharing. Outstanding debts owed by the Aboriginal group to the federal Crown will be deducted from final settlements.

14. Management of Settlement Assets

    Aboriginal governments and corporate structures established in treaties must be designed by Aboriginal groups to provide for the protection and enhancement of treaty assets based on sound management practices and democratic control by the beneficiaries.

15. Programs

    Beneficiaries of a treaty will retain their eligibility for government programs, except where a comparable jurisdiction, authority or program has been assumed by an Aboriginal government pursuant to a treaty. Benefits received under such programs that will be determined by general program criteria.

16. Tax Matters

    Cash and Lands

    The cash component payable under an agreement will be regarded as a capital transfer and will be exempt from taxation. However, any income derived from the cash component will be subject to provisions of the Income Tax Act. Other elements of capital transfer of the treaty, such as a share of resource revenues, will be subject to prevailing taxation legislation and practices.

    Unimproved lands may be exempted from property taxation except in relation to municipal services.

    Tax Powers and Tax Treatment

    The tax powers and tax treatment of Aboriginal governments as well as the tax treatment of their institutions and citizens is addressed in the context of self-government negotiations under the Inherent Right Policy (1995).

17. Beneficiaries to the Agreement

    Those who benefit from treaties must be Canadian citizens of Aboriginal ancestry from the settlement area, or their descendents, or other persons as defined by mutually-agreed criteria. During negotiations, individuals may shift their connection from one negotiation process to another. Ultimately, however, beneficiaries cannot participate in or benefit from more than one treaty. Treaties may provide for beneficiaries to transfer between treaties after they come into effect.

    The definition of beneficiaries will not affect the status of persons under the Indian Act.

18. Dispute Resolution

    Treaties will include processes for the resolution of conflicts or disputes respecting the interpretation, application or implementation of the agreement. Dispute resolution will normally follow a staged approach encompassing collaborative negotiations, facilitation or mediation and arbitration. Use of arbitration should require the consent of all parties to the dispute on matters beyond determination of fact or on technical issues, unless otherwise specified in the treaty.

The Process for Treaty Negotiations Outside of British Columbia

The following section sets out general procedures for the initiation and conduct of comprehensive land claim negotiations outside of British Columbia.

The British Columbia Treaty Process

In BC, treaty negotiations follow a similar process to elsewhere in Canada. However, in 1990, the governments of Canada and British Columbia, together with the First Nations of British Columbia, established a Claims Task Force to investigate how treaty negotiations might begin in British Columbia and what they should cover. The Claims Task Force made 19 recommendations and suggested a six-stage process for negotiating modern treaties with an independent British Columbia Treaty Commission to oversee and facilitate the process. A tripartite agreement was concluded in 1992; treaty commissioners were first appointed in April 1993; and the treaty process officially began in December 1993.

The treaty process is a six-stage negotiation between the federal government, the provincial government and participating First Nations:

• Stage 1: Statement of intent to negotiate
• Stage 2: Readiness to negotiate
• Stage 3: Negotiation of a framework agreement
• Stage 4: Negotiation of an agreement-in-principle
• Stage 5: Negotiation to finalize a treaty
• Stage 6: Implementation of the treaty

The main difference in the process between outside of BC and the BC treaty negotiation process is that it is open to all First Nations in British Columbia without requirements for submission of statements of claim and supporting materials or for government review and acceptance of claims. The British Columbia Treaty Commission accepts First Nations into the treaty process on the basis of their unresolved claims to Section 35 Aboriginal rights, allocates negotiation support funding and monitors the progress of negotiations.