A New Direction: Advancing Aboriginal and Treaty Rights

Facts at a Glance

A. Canada's Role in Treaty-Making

Canada has a unique relationship with Aboriginal people. The Royal Proclamation represents an early expression of the Crown's intention to act honourably with respect to Aboriginal interests in land. The division of powers in the Constitution Act, 1867 provides Canada with exclusive legislative authority over "Indians, and Lands reserved for the Indians".^{Footnote 11} There is also a special trust-like or fiduciary component to the Crown-Aboriginal relationship. This relationship is reflected in section 35 of the Constitution Act, 1982, which recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal people. The special nature of the relationship means that the honour of the Crown is at stake in all of Canada's dealings with Aboriginal people.^{Footnote 12}

Areas of provincial jurisdiction also affect Aboriginal and treaty rights. Provinces have exclusive jurisdiction over property and civil rights and are responsible for the exploration, development, and conservation of natural resources. Furthermore, provinces are the primary landowners. For example, in British Columbia, provincial Crown land makes up 94% of the province, whereas federal Crown land only one percent.^{Footnote 13}

Canada has discrete areas of jurisdiction within provinces, including responsibility for national parks, national defence, fisheries, migratory birds, and navigation and shipping. Canada also relies on its trade and commerce and federal undertaking powers to legislate in areas where activities are inter-provincial in nature or of sufficient scale to justify federal involvement.

B. Historic Treaty-Making

In 1763, King George III marked the end of the Seven Years' War by issuing the Royal Proclamation. Under the Treaty of Paris, France ceded control of its North American territories to Great Britain. The Royal Proclamation established a new administrative structure for British North America and acknowledged Aboriginal possession of lands that had not been ceded to or purchased by the Crown. The Royal Proclamation also prohibited the purchase or sale of Aboriginal lands without the Crown's prior consent.

In the Maritimes and parts of Quebec, the need for economic and military alliances with Aboriginal people gave rise to the completion in the mid-18th century of peace and friendship treaties with the Mi'kmaq, Maliseet, and Passamaquoddy First Nations. Those treaties did not require the surrender of title to land. Soon after, however, the Crown began to require the surrender of Aboriginal rights and title to land and resources to facilitate settlement. For example, land in the Great Lakes region was ceded through the Williams treaties (1781–1882) and the Robinson treaties (1850).

Starting in 1871 and continuing through to 1921, Canada negotiated 11 numbered treaties across northwestern Ontario, the prairies, and in parts of British Columbia, Yukon, and the Northwest Territories. These treaties required Aboriginal groups to surrender their rights and title to land in exchange for treaty rights. Other than the pre-Confederation Douglas treaties on Vancouver Island and Treaty 8 in the northeast, no other treaties were concluded in British Columbia until 1998.

Approximately 70 treaties were completed between the 18th century and 1921. Those treaties form the basis of the relationship between the Crown and 364 Aboriginal groups. They are located in nine provinces and three territories.

C. Suspension in Treaty-Making

Canada did not pursue treaty-making after Treaty 11 was completed in 1921. In 1927, Canada enacted section 141 of the Indian Act which prohibited Aboriginal groups from pursuing land claims and retaining lawyers for such purposes.^{Footnote 14} This provision was repealed in 1951.

There were sporadic but unsuccessful efforts to resolve longstanding Aboriginal claims after the Second World War. A special joint committee of the Senate and House of Commons studied the Indian Act between 1946 and 1948 and proposed, among other things, that an Indian claims commission be established to address Aboriginal grievances. A second joint committee of the Senate and House of Commons considered Aboriginal issues between 1959 and 1961. In 1962, the Diefenbaker government introduced legislation to establish an Indian claims commission but the initiative died when the government was defeated. Efforts by the Pearson government to establish a claims commission were also unsuccessful.

In 1964, the Minister of Citizenship and Immigration asked the University of British Columbia to undertake a study of the social, educational, and economic situation of Aboriginal people in Canada. The findings were submitted in two volumes.^{Footnote 15} The authors considered the reasons why Aboriginal Canadians were falling further behind national averages in incomes and spending and advanced the proposition that Aboriginal Canadians should be accorded status as "citizens plus" because of a general misconception they were less than full citizens.

Canada unveiled a new Aboriginal strategy in 1969.^{Footnote 16} The "White Paper" advocated the full, free, and non-discriminatory participation of Aboriginals in Canadian society but proposed to achieve this objective by removing specific references to "Indians" from the Constitution to end the legal distinction between Aboriginals and other Canadians. Land claims were described in the White Paper as general and undefined and not capable of remedy except through a policy that would end injustice to Aboriginal people. The White Paper also expressed doubt whether an Indian claims commission was the right way to deal with grievances. Canada pledged to appoint a commissioner to enquire into and report on grievances relating to the implementation of historic treaties, a role subsequently filled by Lloyd Barber.^{Footnote 17} The White Paper was met with vigorous opposition from Aboriginal organizations across Canada.

D. Modern Treaty-Making

In the late 1960s, members of the Nishga Indian Tribe (now known as the Nisga'a Nation) commenced a proceeding in the Supreme Court of British Columbia to obtain a declaratory judgment that their Aboriginal title had never been lawfully extinguished. The action was dismissed at trial.^{Footnote 18} The Court of Appeal for British Columbia dismissed an appeal from the trial judgment.^{Footnote 19} In the further appeal to the Supreme Court of Canada, six of seven justices acknowledged the existence of Aboriginal title but could not agree if it applied in British Columbia.^{Footnote 20}

Before Calder, Canada believed that Aboriginal title claims could not be easily categorized or recognized because they involved a "bewildering and confusing array of concepts".^{Footnote 21} Following Calder, Canada resolved to address Aboriginal land claims.

The 1973 policy

In 1973, the Rt. Hon. Jean Chrétien, who was then Canada's Minister of Indian Affairs and Northern Development, published a statement indicating Canada's intention to settle land claims through negotiations.^{Footnote 22} According to the statement, Canada was prepared to provide compensation to native peoples in return for the relinquishment of their interest in lands. Negotiations were contemplated with Aboriginal groups in British Columbia, Northern Quebec, Yukon, and the Northwest Territories. It was Canada's expectation that provinces would participate in the negotiation and settlement of claims and contribute to settlement costs. The statement became Canada's first comprehensive claims policy (the "1973 Policy").

Canada's approach under the 1973 Policy was to accept land claims based on traditional Aboriginal use and occupancy without an admission of legal liability. The term "comprehensive claim" was developed to reflect the nature of the contemplated negotiations which would involve a variety of topics including land title, money, protection of hunting, fishing, and trapping, as well as other rights and benefits in exchange for a release of general and undefined Aboriginal title.^{Footnote 23}

Canada established the Office of Native Claims (the "ONC") in 1974. Aboriginal groups were required to submit information and documentation to the ONC to support their claim. The ONC considered proposed claims in terms of their historic accuracy and legal merit and reported to the Minister who could accept or deny a claim. Canada provided funding through contributions and loans to Aboriginal groups whose claims were accepted for negotiation. Loans were to be repayable as a first charge against monetary compensation in a final agreement. Fifteen claims were accepted for negotiation under the 1973 Policy.

This map illustrates the boundaries of historic treaties concluded between First Nations and the British and Canadian governments from 1701 to 1930.

• PDF Version - Pre-1975 Treaties Maps in Canada (5.32 Mb, 1 Page)

E. Past Reports on Canada's Approach to Negotiating Aboriginal Rights Claims

Periodically, Canada has commissioned studies and published reports about the comprehensive land claims process. Those reports provide an important historical perspective and include:

• the 1983 report, Indian Self-Government in Canada: Report of the Special Committee (the "Penner Report");
• the 1985 report, Living Treaties, Lasting Agreements: Report of the Task Force to Review Comprehensive Claims Policy (the "Coolican Report");
• the 1995 report, Canada and Aboriginal Peoples: A New Partnership (the "Hamilton Report");^{Footnote 33}
• the 1996 Report of the Royal Commission on Aboriginal Peoples (the "Royal Commission Report");^{Footnote 34}
• the auditor general of Canada's November 2006 report to the House of Commons;^{Footnote 35}
• the 2008 interim report of the Standing Senate Committee on Aboriginal Peoples regarding modern treaty implementation entitled Honouring the Spirit of Modern Treaties: Closing the Loopholes;^{Footnote 36}
• James Lornie's 2011 report about accelerating negotiations in the BC treaty process (the "Lornie Report");^{Footnote 37} and
• the 2012 report of the Standing Senate Committee on Aboriginal Peoples entitled A Commitment Worth Preserving: Reviving the British Columbia Treaty Process.^{Footnote 38}

Many of the issues I have considered are neither new nor unforeseen. The observations, findings, and recommendations of these reports remain relevant and compelling despite the passage of time, legal developments, and changes in policy having placed some of the issues in a different context.

Section 35

Section 35 was enacted as part of the Canadian constitution in 1982. Before 1982, Aboriginal rights existed and were recognized under the common law but because they did not have constitutional status, they were vulnerable to extinguishment or regulation by legislation. Since the enactment of section 35, Aboriginal rights cannot be extinguished except by agreement, and can only be regulated or infringed by the Crown where justified.

Section 35 does not identify the range or nature of Aboriginal rights. Canadian courts have provided guidance for determining the content, nature, and scope of Aboriginal and treaty rights, and the Crown's obligations in respect of those rights. Judicial decisions have played a major role in policy development and have provided guidance on balancing and reconciling section 35(1) rights with the rights and interests of Canadian society as a whole.

The Supreme Court of Canada has defined Aboriginal rights as the modern exercise of a practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming the right.^{Footnote 43} Aboriginal rights are not general or universal but must be determined on a case-by-case basis.

Consequently, the fact that one Aboriginal group has an Aboriginal right will not be sufficient to demonstrate that another Aboriginal group has the same right.

Aboriginal title is a sub-category of Aboriginal rights and is a right to exclusive use and occupation of the land itself. While the Supreme Court of Canada acknowledged the possibility of Aboriginal title in 1973, the first declaration of Aboriginal title was only made by the Court last year.^{Footnote 44}

The Duty To Consult

One of the more significant developments in Aboriginal law is the duty of the Crown to consult Aboriginal groups where their claimed or proven section 35(1) rights may be adversely affected by Crown conduct.^{Footnote 45} This is a substantial obligation because if consultation or accommodation is found to be inadequate, Crown decisions can be suspended or set aside. The duty to consult has provided Aboriginal groups with leverage to safeguard their section 35(1) rights along with the ability to negotiate a range of benefits without the need to prove their rights or exchange or modify those rights as required by modern treaties.

In Tsilhqot'in, the Court elaborated on the content of the Crown's duty to consult in relation to conduct that may affect Aboriginal title land. The Court provided pointed advice: the Crown can always avoid a charge of failing to adequately consult by obtaining the consent of the interested Aboriginal group where proposed Crown conduct may adversely affect claimed Aboriginal title land.^{Footnote 46}

Reconciliation

The Court has affirmed that the fundamental objective of Aboriginal law is the "reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions".^{Footnote 47} This has been a consistent message since the enactment of section 35. Despite judicial decisions being significant contributors to the evolution of the Crown-Aboriginal relationship, the Court has emphasized that the process of reconciliation should take place through negotiations, guided by judicial principles the Court has developed.

The Honour of the Crown

The Court continues to emphasize that the "honour of the Crown is always at stake" in Canada's relationship with Aboriginal people.^{Footnote 48}

The honour of the Crown is not a legal duty or obligation but refers to a standard of conduct. It has become a robust legal principle that imposes substantial obligations and liabilities on the Crown. The honour of the Crown gives rise to specific duties depending on fact-specific circumstances and the nature of the promises made.

The source of this concept is not entirely settled.^{Footnote 49} One theory argues that it flows from a general principle of imperial law that governed the Crown's assertion of sovereignty over Aboriginal peoples, requiring it to act honourably and respect their rights. Another theory characterizes the standard as voluntarily created by the Crown when it asserted sovereignty over the Aboriginal peoples of Canada through the Royal Proclamation, committing itself to the groups' protection. Previously, the honour of the Crown found expression in the "sanctity of the word of the white man".^{Footnote 50} Regardless of the source, courts presume a high standard of conduct by the Crown. Furthermore, this area of law is steadily evolving and the scope of potential legal duties arising from the honour of the Crown continues to expand.

The honour of the Crown has been applied to assess the standard of Crown conduct in relation to treaty-making,^{Footnote 51} the interpretation of historic treaties,^{Footnote 52} the implementation of modern treaties,^{Footnote 53} and the implementation of constitutional obligations to Aboriginal peoples.^{Footnote 54} The honour of the Crown requires diligent, prompt, effectual, and equitable implementation or fulfillment of promises; a pattern of repeated mistakes, inaction, indifference, delay, inattention, or carelessness is objectionable.^{Footnote 55}

Litigation

Despite the Court's preference that reconciliation be pursued through good faith negotiations, litigation continues to dominate Crown-Aboriginal relations. Several federal departments and agencies are involved in Aboriginal rights litigation.^{Footnote 56} AANDC alone is a party in 452 proceedings involving section 35(1) rights.^{Footnote 57} Aboriginal title is raised in 157 active claims involving Canada and it is foreseeable that some of these actions may proceed to trial as a result of the Court's declaration in Tsilhqot'in.^{Footnote 58}

The cost of Aboriginal rights litigation is significant. AANDC spent in excess of $100 million for litigation legal services over the past five years and the annual amount has been relatively consistent during that time. In some circumstances, the Crown is required to indemnify Aboriginal participants for costs incurred in a proceeding. For example, in Tsilhqot'in, Canada and British Columbia were required to fund the plaintiffs' litigation costs, in addition to their own, which amounted to more than $20 million.^{Footnote 59}

Aboriginal rights claims highlight the tremendous inefficiencies of litigation as a dispute resolution tool. Judicial proceedings are time-consuming and expensive and do not always provide certainty of result. It can take decades from the date a cause of action arises to the exhaustion of the right to appeal.^{Footnote 60} Unique aspects of the treatment of evidence in Aboriginal rights claims, including expert opinions and oral histories about pre-contact practices, draw out proceedings. Trials can be multi-year events.^{Footnote 61} Despite the significant expenditure of time and resources, many Aboriginal rights cases do not resolve the underlying issue between the parties. Decisions rarely result in a straightforward outcome with one party winning and the other losing. Delgamuukw, for example, resulted in an order for a new trial.^{Footnote 62} While the Tsilhqot'in Nation obtained a declaration of title in its action, implementing the decision will require negotiations with the Crown. There are also examples of Canada being slow, or worse reluctant, to carry out required policy changes that result from judicial decisions.^{Footnote 63}

Reliance on litigation to resolve disputes also creates the risk of expanding Crown liability in unpredictable ways, particularly where courts are being called on to interpret and resolve historical, political, and social policy issues.^{Footnote 64}

Over the past 25 years, the Supreme Court of Canada has provided guidance to assist the Crown and Aboriginal groups in characterizing the nature, scope, and content of Aboriginal rights, including insight about justifiable limitations on those rights. The Court has also outlined a general framework the Crown must adopt to discharge the duty to consult and accommodate, and has provided a spectrum for assessing the strength of Aboriginal rights claims. At the same time, the Court has stated that Aboriginal claimants cannot frustrate the process, nor should they take unreasonable positions.

There is an expectation by the courts that claims for the recognition of Aboriginal rights will be resolved through a process of discussion and compromise and not by trial judgments and appeals. What this means on a practical level is that assertions of Aboriginal rights, including title, should be the starting point for dialogue rather than provoking an impasse. It is impractical to seek judicial intervention every time the Crown's duty to consult is engaged. More than ten years after Haida Nation, all parties should be well versed about their respective obligations. Ideally, the Crown and Aboriginal groups should jointly assess the nature of claimed rights. Perhaps more challenging is the determination whether a "compelling and substantial purpose" justifies the infringement of an Aboriginal right or incursion on Aboriginal title land.^{Footnote 65} Nevertheless, the parties are expected to make good faith efforts to ensure Aboriginal rights, including title, can be exercised in a manner that accommodates the interests of Aboriginal groups and Canadian society as a whole.

Differences will inevitably arise and there will always be recourse to litigation. But there is an opportunity for the Crown and Aboriginal groups to use the courts in a more strategic fashion, one that avoids the specter of multi-decade trials and appeals, while providing guidance or instruction on discrete issues. For example, in Haida Nation, the Court noted that difficulties associated with the absence of proof should not derail negotiations, and that courts or tribunals are available to assist when difficulties arise.^{Footnote 66} Superior courts offer dispute resolution services as well as procedures for the determination of discrete issues by way of petition, summary trial, or stated case. The strategic use of the courts can complement good faith negotiations.

The Impact of Tsilhqot'in

On 26 June 2014, the Supreme Court of Canada issued a declaration that the Tsilhqot'in Nation in British Columbia holds Aboriginal title to more than 1,700 square kilometres of land in that province. Tsilhqot'in became a focal point at engagement meetings. Many Aboriginal groups presume the declaration means that they too hold Aboriginal title. Groups in every region contend that their consent is now required for resource development projects. Some are not prepared to wait for the Crown or judiciary to recognize their Aboriginal title. In July 2014, some members of the Gitxsan Nation purported to evict forest companies, CN Rail, and the sports fishery from their asserted traditional territory in British Columbia. In September 2014, the Atikamekw Nation in Quebec issued a declaration of sovereignty over their asserted traditional territory which they call Nitaskinan.^{Footnote 67}

The fact the Interim Policy does not reference Tsilhqot'in is seen by some Aboriginal groups as a purposeful omission and has fueled speculation that Canada will avoid addressing claims of Aboriginal title.

Canada's failure to publicly respond to Tsilhqot'in has produced what has largely been a one-sided dialogue about the significance of the decision and the attributes of Aboriginal title. Few have acknowledged the lack of clarity and certainty about limitations on the use of Aboriginal title land.^{Footnote 68} The practical implications of Aboriginal title have also been largely ignored. Although the Court reiterated that incursions on Aboriginal title land are permitted when justified by a "compelling and substantial purpose", there has been little acknowledgement or discussion of this important qualification, despite the current range of proposed resource development projects that may qualify.

In the absence of Canada's participation in the post-Tsilhqot'in conversation, two Aboriginal organizations in British Columbia have set the parameters for discussions. In September 2014 the First Nations Leadership Council^{Footnote 69} advanced the following principles to guide Crown-Aboriginal relations:

• acknowledgement that all our relationships are based on recognition and implementation of the existence of indigenous peoples' inherent title and rights, and pre-confederation, historic and modern treaties, throughout British Columbia;
• acknowledgement that indigenous systems of governance and laws are essential to the regulation of lands and resources throughout British Columbia;
• acknowledgment of the mutual responsibility that all of our government systems shall shift to relationships, negotiations and agreements based on recognition; and
• we immediately must move to consent based decision-making and title based fiscal relations, including revenue sharing, in our relationships, negotiations and agreements.^{Footnote 70}

The Carrier Sekani Tribal Council, which represents the interests of eight First Nations in north-central British Columbia, published the statement excerpted below. While confirming its interest in working collaboratively with the Crown to facilitate project development, the council nevertheless indicated that collaboration will have to accommodate unextinguished Aboriginal rights including title:

• Presently development of mining, fishery, forestry, land and energy resources are substantial economic drivers. This is the major source of all wealth creation supporting jobs and business development. There is no good reason for First Nations to be on the sidelines of these economic activities. While properly taking care of the environment, protecting traditional food sources and security and planning for and acting on the inevitable social impacts First Nations should also see economic benefits, including revenues and jobs, from our traditional lands and resources. As everyone knows the social-economic gaps our people face are significant. We are addressing these in a constructive and proactive way and we need governments to be full partners in this.
• We are the original owners of the lands and resources in our respective territories and we have aboriginal rights and aboriginal title to our lands and resources. The Constitution of Canada "recognizes and affirms" this. We have never given this up. As the Supreme Court of Canada stated in Tsilhqot'in and given the significant impacts arising from LNG and other resources development we are firm in our view that our respective First Nation's consent is absolutely necessary. Any agreement with our First Nations about our traditional lands and resources will require this standard.^{Footnote 71}

Canada is not under a moral or legal duty to agree with every position advanced by Aboriginal groups, but there is a need for Canada to be present for the discussion. Conversely, Aboriginal representatives need to acknowledge that their communities are part of the broader Canadian social, political, and economic community over which the Crown is sovereign. Hard bargaining, balance, and compromise are to be expected of the parties in advancing their respective positions.

Canada acknowledges in the Interim Policy that negotiations are the preferred way to advance section 35(1) rights and that Aboriginal communities need to be provided access to economic development opportunities to create jobs and economic growth.^{Footnote 72} From Canada's perspective, doing so will promote a secure climate for economic and resource development that benefits all Canadians and balances Aboriginal rights with broader societal interests.

The Aboriginal position is remarkably similar. Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs, explained as follows: "First Nations are trying to reconcile history, to live with pride and dignity and to benefit from the land. They are sick and tired of being completely impoverished living on postage stamps. They want to be involved in the economy. It's not a lot to ask for."

There is also an acknowledgement within Aboriginal communities about what is at stake. As another Aboriginal leader put it, a "no" to resource development projects is a resounding "yes" to the status quo.

What is standing in the way? Acrimony and mistrust are the consequences of a historically difficult relationship. A rapidly evolving legal environment has added to the instability and uncertainty. There is not an obvious path or immediate fix, although the importance of constructive dialogue cannot be overstated. This will require determined efforts by Crown and Aboriginal representatives to develop and maintain relationships and work through conflicting perspectives and difficult issues. There are bound to be disagreements but headway will not be realized without acknowledging and considering each other's interests. Crown representatives may not have a ready appetite to discuss the implementation of the First Nations Leadership Council's proclamation. Nor will Aboriginal leaders want to address the range of circumstances that may justify an infringement of claimed Aboriginal title. But these issues need to be confronted and resolved. Development of key areas of Canada's economy will depend on the reasonable accommodation of interests. Progress is best measured incrementally. There is much to discuss.

Recommendations

1. Canada's new reconciliation framework should include a renewed and reformed comprehensive land claims policy along with a wider spectrum of policies and initiatives to reconcile constitutionally protected Aboriginal and treaty rights.
2. The new reconciliation framework should reflect the historic, cultural, and regional diversity among Aboriginal communities to effectively address Aboriginal and treaty rights.
3. A "whole of government" commitment is required, with high level direction and oversight, to implement the new reconciliation framework.

A. Modern Treaties

Modern treaties provide Aboriginal communities with the means to pursue political, social, cultural, and economic independence. They also benefit all Canadians by clearly defining the ownership and jurisdiction of land and resources within claimed traditional territories.

There is empirical evidence that modern treaties improve community well-being.^{Footnote 78} The experience in treaty communities supports this proposition. For example, it is generally acknowledged that socio-economic outcomes for the 11 Yukon treaty First Nations are better now than pre-treaty and exceed those of the non-treaty First Nations in that region.

Modern treaties also represent the fulfillment of an Aboriginal community's longstanding aspirations. The Nisga'a people in northern British Columbia are immensely proud of their treaty, which was completed in 1998. The Nisga'a began petitioning the Crown in the late 19th century for recognition of their connection to and ownership of their traditional territory. The Nisga'a treaty ended uncertainty about ownership of land and resources, severed the community's connection to the Indian Act, and established the legal foundation for the Nisga'a to conduct their own affairs. There are specific features of the Nisga'a treaty that reflect the community's vision of building a sustainable economy, including constitutionally protected jurisdiction over land and resources and a Nisga'a-specific environmental assessment process.

Similarly, the Tsawwassen final agreement reflects that community's vision of obtaining jurisdiction over land and resources in an urban environment thereby increasing community well-being through economic development initiatives. Today, the Tsawwassen First Nation is undertaking $1.4 billion in retail, residential, industrial, and agricultural developments on treaty settlement lands, making it a significant contributor to the British Columbia economy.

Treaty-making is supported by industry, which sees modern treaties as the best and preferred way to establish a legal framework to clarify the attributes and geographic extent of Aboriginal rights, thereby contributing to a more stable, competitive, and predictable environment for economic and resource development.^{Footnote 79}

The Interim Policy reflects Canada's perspective that modern treaties establish a mutually agreed-upon and enduring framework for reconciliation and ongoing relationships between the Crown and Aboriginal people, and remain the most comprehensive arrangements for addressing section 35(1) rights. A modern treaty provides not only ownership of land and resources but also self-government and other law-making powers, harvesting rights, a cash settlement, and ongoing funding for the implementation of the treaty. While Tsilhqot'in has given support to and elevated the expectations of Aboriginal groups, many important issues were not resolved by the Court's declaration. For example, the decision does not address the practical implications of Aboriginal title. As a result, the Tsilhqot'in Nation's Aboriginal title is a starting point for discussions with the government of British Columbia and Canada to address a wide range of related issues, many of which are the focus of modern treaty negotiations. Failure to reach agreement may produce yet more litigation.

Some Aboriginal groups have raised concerns that modern treaties result in the application of provincial jurisdiction over former reserve lands and the phasing out of section 87 Indian Act tax exemptions. These changes are seen as a disincentive by some for concluding a modern treaty. Other Aboriginal groups, however, support modern treaties because they provide constitutionally protected governance rights over a larger land base (the group's treaty settlement lands) than existing reserves and the ability to create and manage fee simple interests.

This map illustrates the boundaries of comprehensive land claims and self-government agreements between First Nations and the Canadian government that have been ratified and brought into effect since the announcement of the Government of Canada's Comprehensive Land Claims Policy in 1973 and the establishment of the BC Treaty Process (1992). More information on Modern Agreements:

• PDF Version - Modern Treaties - Comprehensive Land Claims and Self-Government agreements (1.17 Mb, 1 Page)

Treaties are most likely to succeed where there is a strong "post-treaty" community vision as well as a sustainable economy and a population that is able to support self-governance. These attributes are not common to all Aboriginal communities. Modern treaties remain relevant for Aboriginal groups that are seeking a comprehensive settlement and are prepared to reconcile their pre-existing rights through negotiations.

B. Other Reconciliation Arrangements

Modern treaties are not a realistic option for many Aboriginal groups. For example, 99 of the 203 Indian Act bands in British Columbia are not part of the treaty negotiation process, and only three of nine Quebec Innu First Nations are negotiating a modern treaty. Reconciliation processes outside modern treaties are of interest, however, to those Aboriginal groups that are unlikely to conclude a comprehensive land claim. There are a variety of interests those communities would like to advance with Canada.

The fact the Interim Policy contemplates pursuing reconciliation with Aboriginal groups through non-treaty agreements in areas of federal jurisdiction is an important development. The Interim Policy identifies a range of topics that could be addressed this way, including fisheries and marine issues, offshore development, and tripartite arrangements with provinces and territories that address strategic interests involving land and resources.^{Footnote 80}

The Interim Policy also proposes incremental treaty arrangements that could be concluded during the course of modern treaty negotiations to promote cooperative relations, build capacity for modern treaty implementation, and provide predictability and clarity in relation to land and resource management.^{Footnote 81}>

Aboriginal groups, provincial and territorial governments, and industry have responded positively to these initiatives.

There are options outside the treaty process that enable Aboriginal groups to influence land and resource decisions and benefit from developments. Agreements between Aboriginal communities and industry recognize the existence of unextinguished Aboriginal rights and title, and provide a range of financial and other benefits. Impact and benefit agreements are completed relatively quickly compared to treaties and provide a level of certainty for project proponents. From industry's perspective, Canada needs to proactively identify and engage strategically located Aboriginal groups about project development both within and outside formal environmental assessment processes.

In 2006, the auditor general of Canada noted that agreements between Aboriginal groups and project proponents offered benefits that meet or exceed what is available through treaty negotiations, but that those agreements are short term and of limited scope compared to treaties.^{Footnote 82} Although that may be true, industry is not prepared to stand by indefinitely for treaty-making to run its course. Furthermore, many Aboriginal communities whose interests are affected by proposed developments are not currently involved in treaty negotiations. Those that are do not consider treaty negotiations to be incompatible with opportunities available through resource development projects.

The emphasis in the Interim Policy on reconciliation processes outside of modern treaties complements the engagement between Aboriginal groups and industry. There is a strong entrepreneurial culture in many Aboriginal communities. Economic development creates jobs, provides joint venture opportunities for Aboriginal businesses, and builds capacity within a community. Success encourages others in the same region to pursue opportunities. Recent non-treaty initiatives by Canada, including opening a major projects management office in Vancouver, are important. Natural Resources Canada is providing a strong federal presence in Alberta and British Columbia by coordinating engagements between Aboriginal groups, project proponents, and the Crown in the development of pipelines, liquefied natural gas terminals, and related infrastructure. As well, Parks Canada has entered into several agreements with Aboriginal groups that have included shared decision-making and consultation frameworks for park lands and resources.^{Footnote 83} Other recent collaborative initiatives between Canada and Aboriginal groups include Canada's investment in the restoration of key fish habitats in the Musqueam Creek watershed and lower Fraser River tidal marsh.^{Footnote 84}

Also significant are tripartite arrangements with Aboriginal groups and provinces and territories. The Nova Scotia Mi'kmaq education agreement was completed in 1997 between 13 Nova Scotia First Nations, Canada, and the province of Nova Scotia to provide First Nations with jurisdiction over education on reserve and management of AANDC's post-secondary programs. This initiative has been considered a success by all parties. Similarly, Canada entered into a consultation process agreement with the Algonquins of Ontario and the province of Ontario in 2009 as an interim measure before the completion of treaty negotiations.

Federal departments also undertake specific non-treaty initiatives that address Aboriginal interests to help manage risks associated with section 35(1) rights. For example, Fisheries and Oceans Canada ("DFO") is party to approximately 135 annual Aboriginal fisheries strategy agreements with about 200 Aboriginal groups, aimed primarily at securing Aboriginal allocations of fish for food, social, and ceremonial purposes and ensuring the participation of Aboriginal groups in managing their food, social, and ceremonial fisheries is supported.

DFO has also entered into eight capacity development agreements and 27 collaborative management agreements under its Aboriginal aquatic resources and ocean management program to help Aboriginal groups participate in advisory and decision-making processes, and undertook the Marshall response initiative in the Maritimes.^{Footnote 85}

Furthermore, Indian Act bands can pursue reconciliation initiatives outside of modern treaties through sectoral federal legislation. Canada has enacted legislation that enables bands to assume greater control over lands, resources, and governance on reserve. These initiatives are designed to build capacity, expertise, and accountability. They also prepare bands for expanded jurisdictions and responsibilities if and when they choose to conclude a modern treaty or other reconciliation arrangement. They represent an important component of Canada's reconciliation framework.

Canada's interest in exploring agreements and constructive arrangements with Aboriginal groups is consistent with the way provincial and territorial governments approach reconciliation outside of modern treaties. These arrangements are attractive because they are more affordable than a full comprehensive claim, can be negotiated relatively quickly, and can be used to advance economic development. Some provinces and territories expressed interest in Canada participating in tripartite arrangements, even if the subject matters fall primarily within provincial jurisdiction such as land-use planning agreements.

Canada has been reluctant to address reconciliation outside the comprehensive land claims policy. Canada's interest in doing so is seen as a positive development. Canada needs to clearly articulate the spectrum of potential reconciliation arrangements and create clear processes for supporting those tools including funding Aboriginal participation. Success will also require an open and collaborative approach and a willingness to respond meaningfully to the anticipated interest by Aboriginal groups and the arrangements they propose. Instead of waiting for proposals to come forward, Canada should actively pursue reconciliation arrangements that may further Canada's strategic interests.

C. A New Rights-Informed Approach

Canada does not recognize the existence of an Aboriginal group's specific section 35(1) rights at the outset of modern treaty negotiations. In British Columbia, negotiations are rights-neutral: a First Nation is not required to demonstrate it is the proper rights-holding collective. In the rest of the country, Canada performs a preliminary rights-based assessment at the outset of negotiations to determine whether the group is a proper rights-holding collective. In all cases, Canada's negotiation mandates are not informed by an Aboriginal group's pre-existing Aboriginal rights.

Canada is prepared to make a general recognition that a treaty group has Aboriginal rights, including title, in the preamble to a treaty but is not prepared to provide the specific recognition sought by some Aboriginal groups.

Many Aboriginal groups want the Crown to recognize their Aboriginal rights at the outset of negotiations. They believe that 25 years of Aboriginal rights and title litigation have consistently confirmed their perspective about recognition. Aboriginal groups want the scope, content, and geographic extent and location of their pre-existing Aboriginal rights to be expressly reflected in a treaty.

Post-Tsilhqot'in, Aboriginal groups anticipate that a rights-based approach will result in a larger land quantum, more influence over land and resource use decisions in their traditional territories, and a greater share of resource revenues.

Previous reviews of the comprehensive land claims policy, including the Coolican, Hamilton, and Royal Commission Reports, have emphasized the importance of negotiations being grounded in the recognition of pre-existing Aboriginal rights and not their surrender or extinguishment.

A purely rights-based approach to treaty negotiations would require the parties' agreement about the nature, scope, and extent of the claimed rights based on tests articulated by the Supreme Court of Canada. It would involve a process quite different from current negotiations and would require the collective to provide evidence to support the claimed rights as well as the Crown's agreement based on its own assessment. This may not be the most efficient way to address reconciliation because an evidence-based approach is time-consuming, can lead to internal conflict within a collective and disagreements between collectives, encourages litigation, and is contrary to the give and take of negotiations that the Supreme Court of Canada has been advocating.

There is a middle ground. Where an Aboriginal group wants a modern treaty to reflect its pre-existing Aboriginal rights, including title, Canada could develop a new model that would include:

• a determination whether a group is a proper rights-holding collective;
• a preliminary assessment of the group's claimed Aboriginal rights;
• where satisfied, a general recognition at the commencement of negotiations that the group has specific pre-existing Aboriginal rights and that the purpose of negotiations is to reconcile and affirm those rights; and
• the Crown's negotiation position being informed by that assessment.

As with the current treaty process, these negotiations would be without prejudice. Further, it is critical for provincial and territorial governments to agree to this model.

A. Institutional Barriers and Process Inefficiencies

B. BC Treaty Process

British Columbia experienced a different treaty-making history than the rest of Canada.^{Footnote 105} With the exception of the Douglas treaties on Vancouver Island and the extension of Treaty 8 into the northeast of the province, no other historic treaties were concluded in the province. This has resulted in a comparatively high number of unresolved Aboriginal land claims that cover most of British Columbia.

When British Columbia joined Confederation in 1871, the provincial government took the position that First Nations did not have rights to land, despite the terms of union providing provincial control over the creation of further Indian reserves. Because Canada retained responsibility for matters related to Aboriginal people under section 91(24) of the Constitution Act, 1867, the provincial government's perspective was that the Indian land question had been resolved.

Through the 19^th and 20^th centuries, many First Nations claimed that their title had not been extinguished and sought to conclude treaties with the Crown. The demand for treaties was resisted by both Canada and the government of British Columbia.

While Canada indicated its willingness to negotiate modern treaties in 1973, the British Columbia government continued its opposition. The enactment of section 35 in 1982 and Aboriginal rights litigation moderated the province's position. In 1990, British Columbia agreed to participate in land claims negotiations and joined negotiations already under way with the Nisga'a Nation.^{Footnote 106} The British Columbia claims task force was established that year. The task force recommended that a new relationship would best be achieved through voluntary negotiations in a "made in BC" process. All of the task force recommendations were adopted by Canada, the First Nations Summit (the "Summit"), and the government of British Columbia (collectively, the "Principals").

The BC treaty process differs from treaty negotiations elsewhere in the country in the following ways:

• the British Columbia Treaty Commission (the "Commission"), as "keeper of the process", oversees negotiations under the six stage process and administers negotiation support funding;^{Footnote 107}
• the process is open to all First Nations, including those claiming historic treaty rights, and First Nations decide whether to enter the process on their own or as part of an aggregation;
• there is no preliminary legal assessment of a First Nation's statement of intent prior to their participation in the process; and
• the Commission determines when parties are ready to start negotiations.

Modern treaty negotiations in British Columbia began in 1993. At the time, it was anticipated that treaty-making would be completed by 2000.

After more than 20 years of negotiations, it is clear those expectations were overly ambitious if not unrealistic. Still, important lessons have been learned. Only four treaties have been concluded under the BC treaty process.^{Footnote 108} Today, 53 tables representing approximately half of the Indian Act bands in the province are engaged in the process. Only four tables are at the stage of negotiating a final agreement. While predicting outcomes in treaty negotiations is challenging, it is improbable that each of the 53 tables will complete a final agreement. It is more likely that no more than ten tables are likely to conclude a treaty in the foreseeable future.

Judicial decisions have also brought into question the appropriateness of a non-rights based approach to negotiations, given the number of overlapping claims in the province and the Crown's consultation obligations. Geography, climate, and the reserve creation policy in British Columbia led to the creation of a comparatively large number of Indian Act bands with small populations. The bands are creatures of statute and in many cases are subsets of larger historical, cultural, and linguistic affiliations. The reality of numerous First Nations with small populations has presented challenges in terms of capacity to negotiate and implement treaties and in the number of negotiations in which the Crown must participate. In addition, the adoption of some task force recommendations, such as the Commission's role in determining readiness and negotiation support funding, may have had the unintended consequence of prolonging the process of negotiations. Intra-community disputes about the validity of a negotiating entity's mandate and authority to participate in treaty negotiations have also been challenging to resolve.^{Footnote 109}

Since 2009, the Principals have been discussing ways to revitalize the process. Substantial changes are required if treaty-making is to become more effective. The Commission could have an important role in reforming the process but its current mandate may be too limited. The Commission was established by the joint operation of federal and provincial legislation.^{Footnote 110} The Commission's statutory powers and duties include the facilitation of treaty negotiations including assessing the readiness of the parties to begin negotiations. The Commission has not been tasked with the responsibility of assessing the parties' readiness, capacity, or mandate to continue negotiations once commenced. This is an important deficiency given the length of negotiations and the range of developments that affect progress at many tables. There is a critical need for oversight throughout the process, a role the Commission could take on. A reformed Commission could also:

• measure progress at negotiation tables based on established criteria and provide periodic reports to the Principals;
• where the prospect of a treaty is unlikely, explore the feasibility of alternative reconciliation arrangements with the parties;
• assist First Nations with the resolution of shared territory and overlapping claims; and
• continue its reporting, public education, and communication functions.

C. Funding Negotiations

Aboriginal participation in treaty negotiations is funded by a combination of loans and contributions from the Crown.^{Footnote 114} Canada has made a significant investment in the modern treaty process, advancing in excess of $1 billion to Aboriginal groups through loan funding and contributions between 1973 and 2013:^{Footnote 115}

Table 5-2 sets out the value of the negotiation loans for the completed modern treaties at the date each was settled.

The lack of urgency in negotiations has led to high debt loads in Aboriginal communities. The average loan per table is approximately $10 million.^{Footnote 116}

Canada treats loans as an advance on the cash transfer component of a final agreement. This is consistent with the recommendations of the Coolican Report which endorsed the provision of interest-free loans to encourage groups to adhere to agreed-upon timetables and to prevent negotiations from becoming a "way of life".^{Footnote 117}

It does not appear that Mr. Coolican and his fellow commissioners anticipated final agreements would take more than 15 years on average to complete. By the time Mr. Lornie considered loans in 2011, the debt burden for participating First Nations in the BC treaty process had become an "unsustainable barrier to progress".^{Footnote 118}

Negotiations have indeed become a "way of life" for many Aboriginal communities. The anticipated capital transfer for some will be substantially offset by their loan debt. The debt is particularly onerous for Aboriginal groups with comparatively small populations and for groups that have been engaged in negotiations for long periods. It is troubling that debt has accumulated even when there has been little or no activity at tables.

Some Aboriginal groups are no longer in active negotiations but have not formally withdrawn from the process because of concerns that Canada will seek repayment of their loans. High debt loads also serve as a disincentive for Aboriginal groups to enter into treaty negotiations. Debt remains on the balance sheets of Aboriginal groups and can affect their credit worthiness, potentially interfering with non-treaty activities. Although Aboriginal leaders are ultimately accountable to their members for the amount of debt accumulated during negotiations, some are of the opinion that Canada will never collect. This has resulted in a lack of disciplined spending and the use of loan funding for non-treaty purposes.

A consistent message at engagement meetings is that Canada must forgive negotiation loans. Aboriginal groups question why they have to borrow money to "get their land back". Many contend that loan debt ought to be written off as consideration for historic grievances, including the Crown's authorization of resource extraction from their territories. Some groups are clear that they do not intend to repay their loans.

There is substance to the assertion that modern treaty-making has contributed to the rise of an Aboriginal rights industry. While it may be true that negotiation loans have enhanced capacity within Aboriginal communities, there are more direct and transparent ways to address capacity development.

Adequate negotiation funding is critical for the success of modern treaties and other reconciliation arrangements because Aboriginal participants are at a relative disadvantage compared to the Crown in terms of their capacity and experience, and depend on the advice and assistance of professional advisors.

Problems with the current funding approach are not new. The provision of loans has not served as an incentive to expeditiously conclude treaty negotiations. The current funding model is not sustainable and the already high debt burden will escalate if nothing is done.

Difficulties with the current approach give rise to two issues: how should negotiations be funded going forward, and what should be done about the accrued debt.

Apart from implementing process efficiencies to bring existing negotiations to a timely conclusion, other measures should be implemented to establish a more disciplined approach. Funding needs to be linked to negotiation activity and progress. This will require a realistic assessment of where tables are in the process. The combination of loans and contributions should continue for tables that are making headway, but the provision of funding should be based on a more rigorous approach including the development of a tariff establishing the amount of the indemnity for specific steps undertaken during negotiations in a manner similar to the way costs are assessed in civil litigation. If a tariff is adopted, discretion should be exercised to ensure the level of funding is commensurate with activity. Doing so should result in more attention to work planning and the management of costs. It would also prevent the allocation of funding for purposes other than treaty negotiations. Where closing tables have high debt loads, Canada should consider increasing the ratio of contributions to loans if doing so would bring negotiations to a conclusion.

Where appropriate, contribution funding should be considered for other reconciliation arrangements at those tables where the parties agree that a modern treaty is not a realistic short or long term objective.

The underlying problem is the accumulated debt. The Commission advocates debt forgiveness for First Nations that are no longer able to conclude a treaty.^{Footnote 119} The Summit is seeking debt forgiveness for all participating groups and relies on the United Nations Declaration of the Rights of Indigenous Peoples to contend that First Nations should not be required to borrow money but should be funded through non-repayable contributions.^{Footnote 120} The Summit also points out that Canada has caused delays through its internal mandating processes and other measures, thereby contributing to the debt that has been incurred.

These are compelling arguments. But it is also true that Aboriginal groups entered treaty negotiations knowing how funding would be provided and they agreed their loans would be repaid. Furthermore, many groups have or are in the process of repaying the moneys borrowed for negotiations. The problems associated with high debt loads should have been apparent years ago but regrettably steps were not taken to address the issue. Blanket forgiveness of debt would be an ill-advised strategy for many reasons. It would be unfair to those groups who have repaid or are in the process of repaying their loans. It would also perversely benefit those who used their negotiation loan funding for non-treaty purposes and have incurred unnecessarily large loans. Most importantly, it would avoid confronting the underlying problem — why so much money was spent with so few results. A better approach than wholesale loan forgiveness would be to deal with the issue on a table-by-table basis at the appropriate time.

D. Shared Territories and Overlapping Claims

Shared territories and overlapping claims are situations where more than one Aboriginal group has potential or established Aboriginal or treaty rights in the same geographic area. The issue affects most Aboriginal groups that have unresolved section 35(1) claims, whether or not in treaty negotiations.

Disputes between Aboriginal groups about shared territories and overlapping claims are a pervasive problem and a significant barrier to treaty-making. The Commission has consistently identified overlapping claims as one of the biggest challenges that a First Nation must overcome.^{Footnote 121} When left unresolved, these disputes delay the completion of modern treaties and other land and resource agreements, and impede project development.^{Footnote 122}

Overlapping claims can be traced to pre-contact Aboriginal societies. The Royal Commission Report estimated there are between 60 and 80 historically based Aboriginal "nations" in present-day Canada living in a thousand or so local Aboriginal "communities".^{Footnote 123} These nations have different histories, languages, cultures, government structures, and spiritual beliefs. Pre-contact Aboriginal societies were not all divided geographically into distinct collectives with inviolable borders. In the context of contemporary legal principles, this means there are geographic areas where it is possible that Aboriginal title may be shared between two or more Aboriginal nations, as well as areas with shared, non-exclusive, site-specific Aboriginal rights.^{Footnote 124}

The Indian Act amplified difficulties with shared territories and overlapping claims. There are 203 Indian Act bands that have claims in British Columbia. The designation of an Aboriginal group as a band under the Indian Act does not necessarily mean it is the proper rights-holding collective.

Since 1973, Canada has consistently encouraged Aboriginal groups to resolve overlapping claims between themselves. The 1981 and 1986 Policies established that no land in areas of shared territory would be granted as part of a comprehensive land claim unless boundary disputes had been resolved.^{Footnote 125} The Coolican Report supported this approach, recommending that rights in an overlap area not be recognized until after the overlap had been resolved.^{Footnote 126} The BC task force was more nuanced, indicating that overlap issues did not have to be resolved prior to the commencement of negotiations.^{Footnote 127} Recommendation 8 from the BC Task Force Report called on First Nations to resolve issues relating to overlapping traditional territories among themselves. Aboriginal organizations agree and regularly issue declarations and pass resolutions to that effect.^{Footnote 128}> Nevertheless, Canada has completed treaties in areas where overlap disputes have not been resolved.

Outside British Columbia, Canada determines whether it will accept a comprehensive land claim for negotiation by conducting a preliminary assessment of the strength of the collective's claim. However, Aboriginal groups are accepted into the claims process even where there are known overlap disputes. Once a claim has been accepted, Canada does not insist that the collective remain intact. Where collectives have disaggregated, the resulting overlaps have been as challenging to resolve as those in the BC treaty process.

Entry into the BC treaty process is initiated by a First Nation's "governing body" filing a "short and succinct" description of the "general geographic area" of the claimed traditional territory as well as proof it has a mandate from its constituents to enter the process.^{Footnote 129} Consistent with the BC Task Force Report, First Nations may organize themselves as they wish.^{Footnote 130} Because the BC treaty process is based on an assertion of Aboriginal rights, at no point does a First Nation have to prove it has Aboriginal rights in the claimed area. The process has been abused, some suggest, by First Nations asserting claim areas beyond their traditional territories that intrude into the territories of others.

There are many examples of Aboriginal groups being unable to resolve their differences about territorial boundaries. The enmity between some groups pre-dates modern treaty-making and is so rooted that efforts to resolve impasses are often futile.

Modern treaty-making has exposed and aggravated these divisions. Although non-derogation provisions provide that nothing in a treaty will affect the section 35(1) rights of groups who are not parties to the agreement, injunctions and other remedies have been pursued to prevent the Crown from completing agreements-in-principle and final agreements.^{Footnote 131} Many Aboriginal groups not in the treaty process lack the resources and capacity to address the complexities of modern treaties or how those agreements may affect their rights, and are often reluctant to become engaged in discussions about the terms of a neighbouring community's proposed treaty. Furthermore, Aboriginal groups are not under a legal obligation to participate in discussions about another group's proposed treaty. There is little incentive for groups to meet to discuss competing claims when there is little to gain in doing so.

The Crown can no longer rely on Aboriginal groups to sort out overlapping claims. In 2004, the Supreme Court of Canada developed the principle that the Crown has a legal duty to consult with Aboriginal people and accommodate their interests before making a decision or taking an action that may adversely affect not only proven but also claimed Aboriginal rights.^{Footnote 132} Approving a proposed treaty constitutes a decision or action requiring consultation. The non-derogation provisions in a treaty are not sufficient comfort that a treaty will not affect another group's rights. The Interim Policy acknowledges this shift by noting while Aboriginal groups are best placed to resolve these matters, Canada will consult where there may be a potential adverse impact on another group's claimed or proven section 35(1) rights.

The duty to consult is a time and resource intensive process that inevitably delays completion of final agreements. Moreover, Crown consultations, even if they meet the legal duty, often do not resolve the underlying dispute between groups.

There has been uncertainty about when and in what circumstances the duty to consult arises. In the past, the Crown has argued that it does not have to consult and accommodate on every potential overlapping claim before completing a treaty because doing so would mean the Crown could never finalize treaties.^{Footnote 133} In some instances, the Crown has undertaken consultations after a final agreement has been negotiated.^{Footnote 134}> However, the Federal Court of Canada recently ruled that Crown consultations should occur before the completion of an agreement-in-principle, because approval of such an agreement is considered "Crown conduct".^{Footnote 135} The ruling is precedent setting. There has already been a subsequent judicial decision affirming this position.^{Footnote 136}

There is no obvious fix to this complicated issue. All parties share responsibility to resolve the problems where they arise. Outlined below are elements of a strategy that address shared territories and overlapping claims.

E. Extinguishment, Certainty, and Finality

There is an ongoing perception by some Aboriginal groups that the object and purpose of modern treaty-making is to extinguish Aboriginal interests in lands and resources for a lesser interest over a smaller territory. Some groups advance a more controversial proposition, contending that Canada's objective is to terminate Aboriginal rights in order to "push through" resource projects.^{Footnote 138}

As discussed below, extinguishment and the related concepts of certainty and finality have a long and controversial history in relation to treaty-making.

Historic treaties achieved certainty if not finality by extinguishing Aboriginal title to surrendered lands and resources. By today's standards, these agreements would be considered unconscionable transactions because of the imbalance in power between the parties and the nature of the bargains.^{Footnote 143} The legacy of these historic treaties continues to influence contemporary perspectives about the object and purpose of modern treaty-making.

F. Implementation

The Interim Policy makes passing reference to treaty implementation, including the assertion that Canada recognizes the importance of implementing modern treaties in a manner that upholds the honour of the Crown. This principle does not, however, appear to be fully reflected in practice.

I met with representatives from 14 of the 26 modern treaty communities. I also received submissions from the Land Claims Agreements Coalition ("LCAC"), which represents the modern treaty communities.

There is a general sense Canada is failing to meet its implementation obligations. In 2008, the Standing Senate Committee on Aboriginal Peoples published the results of its study about the implementation of comprehensive land claims.^{Footnote 155} The committee offered four recommendations to address what it perceived as a lack of coordination of Canada's duties and obligations under modern treaties, as well as indifference by Canada to the economic and social objectives of those agreements. I was informed Canada has responded to each of these recommendations and has reported its efforts to address deficiencies.

The auditor general of Canada has also reported on the implementation of modern treaties and has been critical of Canada for failing to support the full intent of the Nunavut, Gwich'in, and Inuvialuit final agreements.^{Footnote 156}

Canada's failure to implement the James Bay and Northern Quebec Agreement resulted in judicial proceedings initiated by the treaty beneficiaries. The parties eventually completed a "new relationship agreement" in 2008 that addressed all implementation issues, and included payment by Canada of $1.4 billion to settle related litigation and fund implementation for the next 20 years. Canada is currently facing a damages claim for $1 billion in relation to the implementation of the Nunavut land claims agreement.^{Footnote 157} The trial of this action is scheduled to commence later this year. These cases are an unfortunate but stark reminder of the risks to Canada if modern treaties are not fully and properly implemented.

Recent judicial decisions have addressed the content and scope of Canada's treaty obligations. The Supreme Court of Canada has confirmed that the honour of the Crown must inform the interpretation and implementation of treaties, whether historic or modern.^{Footnote 158}> Furthermore, the Court has established the standard of diligent implementation, meaning that "Crown servants must seek to perform the obligation in a way that pursues the purpose behind the promise".^{Footnote 159}

Fundamental to effective implementation is the recognition that modern treaties are with the Crown and that many departments, not just AANDC, have obligations that must be fulfilled. There is a perception AANDC oversees the management of Canada's implementation obligations but does not have sufficient influence to properly do so. In fact, each department is responsible for managing its implementation obligations but treaty implementation does not appear to be a priority for all departments. There have been difficulties during the implementation of treaties with understanding or interpreting what negotiators meant or intended by certain provisions. There may also be a lack of awareness among many federal officials in their day-to-day work about the scope and intent of treaty obligations. Given the extent and significance of treaty implementation obligations, more oversight, awareness, and accountability are required within the federal system. To ensure the diligent implementation of modern treaties, a central agency should be responsible for managing the full range of Canada's obligations.

In 2008, LCAC developed and endorsed a model implementation policy for Canada's consideration.^{Footnote 160} In 2013, Canada agreed to participate in a working group with LCAC to pursue a number of shared implementation objectives, including the development of common principles and options for a "whole of government" approach. I understand the working group is making progress and I believe it is important for Canada to continue to collaborate with LCAC on the parties' shared objectives.

LCAC continues to urge Canada to adopt a stand-alone modern treaty implementation policy. Federal officials question whether a stand-alone policy would be an effective mechanism to address the acknowledged difficulties with treaty implementation. The challenges of treaty implementation are compounded by the fact there are unique provisions in each of the 26 modern treaties, establishing a range of obligations that must be fulfilled at different times and in different ways. Canada's relationship with each of the 26 First Nations governments is also different. The interests and capacities of those governments are diverse. Instead of developing a stand-alone policy, it may be more effective to ensure adequate funding and resources for those departments that have implementation obligations, and to enhance internal government structures to monitor and coordinate implementation activities.

Implementation is not only about fulfilling specific transactional obligations. It is also about honouring and fulfilling the spirit and intent of a treaty. Modern treaties need to be implemented in an effective, organized, and generous manner, bearing in mind that successful treaty implementation is part of an ongoing and collaborative relationship.

The scope of the obligations imposed by the honour of the Crown may not be fully appreciated within all federal departments and agencies. Recent judicial decisions have expanded Crown liability in the area of treaty implementation. Consequently, steps should be taken to ensure officials responsible for implementing various aspects of modern treaties are fully aware of what is required. In 2012, the Hon. Lance Finch, who was then chief justice of British Columbia, presented a paper wherein he linked the principle of the honour of the Crown with a duty for members of the legal profession to learn about Aboriginal legal perspectives.^{Footnote 161} In much the same way, federal officials should be encouraged to learn about and better understand the Aboriginal perspective and how Aboriginal rights have been articulated and guarded by the courts. As a practical measure, Canada should develop training programs for federal officials to promote the diligent, prompt, effectual, and equitable implementation of treaties.

Appendix A - List of Engagement Participants

Appendix B - List of Comprehensive Claims Negotiation Tables Across Canada

Appendix C — Consolidated List of Recommendations

1. Canada's new reconciliation framework should include a renewed and reformed comprehensive land claims policy along with a wider spectrum of policies and initiatives to reconcile constitutionally protected Aboriginal and treaty rights.
2. The new reconciliation framework should reflect the historic, cultural, and regional diversity among Aboriginal communities to effectively address Aboriginal and treaty rights.
3. A "whole of government" commitment is required, with high level direction and oversight, to implement the new reconciliation framework.
4. Canada should continue to negotiate comprehensive land claims but barriers and inefficiencies in the treaty negotiation process need to be addressed so agreements can be concluded in a timely manner.
5. Canada should identify the spectrum of reconciliation arrangements, apart from modern treaties, it is willing to pursue with Aboriginal groups, and it should be receptive to proposals from Aboriginal groups and provincial or territorial governments.
6. Canada should initiate discussions about potential reconciliation arrangements on a bilateral or tripartite basis in areas of strategic federal interest.
7. Federal mandating and approval processes for reconciliation arrangements should be structured to facilitate timely decision making.
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.
9. Canada should develop a reconciliation process to support the exercise of Métis section 35(1) rights and to reconcile their interests.
10. Canada should establish a framework for negotiations with the Manitoba Métis Federation to respond to the Supreme Court of Canada's decision in Manitoba Métis Federation v. Canada, 2013 SCC 14.
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.
12. The Minister of Aboriginal Affairs and Northern Development should be given the discretion to approve all non-binding framework agreements and agreements-in-principle upon the recommendation of the federal steering committee.
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.
14. In order to be more responsive, Canada should:
    1. impose internal timelines to obtain necessary approvals and respond to proposals from negotiating tables;
    2. require federal departments to coordinate their resources in ways that address the needs of productive negotiating tables; and
    3. ensure the new reconciliation framework is made a priority across departments.
15. Canada should consider options to accelerate the conclusion of modern treaties, including opt-in legislative approaches, the negotiation of regional umbrella agreements, the identification of mandatory treaty provisions, and the development of "thin treaties".
16. Canada should work with its negotiation partners to develop the necessary accountability mechanisms to be able to assess progress in negotiations.
17. Canada should promote greater accountability through a range of options which may include auditor general reviews, standing committee reports, or annual reports by the Minister of Aboriginal Affairs and Northern Development to Parliament on the status of negotiations at tables.
18. Canada should consider the use of an independent chair to impose accountability and supervise progress at final agreement tables.
19. Canada should encourage its partners to jointly undertake education and information programs about the object and purpose of modern treaties and progress at specific treaty tables.
20. Canada should establish a forum with provincial and territorial governments to share information and best practices and to facilitate coordination for reconciliation initiatives.
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.
22. Negotiation support funding should be tied to progress achieved in negotiations taking into account annual work plans developed and agreed to by the parties.
23. Canada should assume responsibility for the provision of negotiating funding in the BC treaty process if it is unable to resolve its current funding impasse.
24. Canada should develop, with the First Nations Summit and the government of British Columbia, entry criteria for new claims in the BC treaty process.
25. Canada should standardize its funding approaches across the country and develop consistent and transparent negotiation cost guidelines and an appropriate accountability framework.
26. The provision of funding should be linked to negotiation activity and progress. This will require jointly developed multi-year work plans that establish clear and measurable mile- stones and the development of a tariff prescribing the indemnification for specific steps in the negotiation process.
27. Canada, in conjunction with provincial and territorial governments and Aboriginal groups, should establish a roster of retired judges and dispute resolution specialists to address disputes about territorial boundaries.
28. Canada should support dispute resolution models that incorporate both common law and indigenous legal principles.
29. Canada should encourage Aboriginal groups to use various dispute resolution models to resolve shared territory and overlap disputes, including the Federal Court of Canada's dispute resolution services.
30. Canada, in collaboration with provinces and territories, should develop criteria for the provision of funding for the resolution of shared territories and overlapping claims.
31. Canada should encourage Aboriginal groups to be innovative in their resolution of overlap disputes and should be prepared to implement reasonable resolutions, even where those resolutions may not be consistent with existing treaty mandates.
32. Canada should support and encourage initiatives that address common areas of interest between Aboriginal groups.
33. Canada should encourage the First Nations Leadership Council in British Columbia, and regional Aboriginal organizations elsewhere in the country, to pursue aggregations of rights-holding collectives.
34. Canada should retain a retired judge to review Canada's certainty techniques, and explain the implications of these provisions, at treaty tables where there is apprehension or confusion about the proposed certainty provisions.
35. Canada should encourage Aboriginal groups to meet with representatives from the modern treaty communities to discuss their views about certainty and modern treaty implementation.
36. The scope of the periodic review process for modern treaties should be expanded to consider the potential for amendments to address:
    1. newly identified Aboriginal rights;
    2. the impact of unforeseen circumstances; and
    3. the failure to achieve the objectives of improving socio-economic conditions and facilitating economic development.
37. Canada should support the inclusion of an orderly process approach for all modern treaties.
38. Canada should increase awareness, oversight, and accountability across departments about modern treaty obligations and improve internal structures for co-ordinating and fulfilling implementation activities.
39. Canada should centralize responsibility for the coordination and oversight of the implementation of modern treaties in a central agency.
40. Canada should continue to collaborate with the Land Claims Agreements Coalition to advance the parties' shared objectives.
41. Canada should ensure treaty provisions are interpreted and given effect in the manner intended by negotiators.
42. Canada should develop a training program for federal officials whose responsibilities involve treaty implementation.
43. Canada should, through the central agency responsible for the coordination and oversight of treaty implementation, file an annual report in Parliament about treaty implementation activities.