Agreement making in Canada
In 1973, the Canadian Federal Government established a Federal policy for the negotiation and settlement of Aboriginal land claims.
This was largely in response to the Supreme Court of Canada's decision in Calder v Attorney-General of British Columbia (1973), which suggested that land rights based on Aboriginal title originating in traditional use and occupancy of the land might be recognised by the common law.
The policy divides claims into the two broad categories of comprehensive and specific claims:
Comprehensive claims are based on the assertion of continuing title to land and resources. The Comprehensive Claims Policy states that land claims may be negotiated only in areas where claims to Aboriginal title have not been dealt with by treaty or some other legal means (although a limited number of claims have been accepted for negotiation as comprehensive claims in areas affected by treaties, particularly where treaty provisions have not been implemented).
Specific claims arise from Canada's breach or non-fulfilment of legal obligations found in treaties, agreements or statutes (including the Indian Act). The Federal Government restated and clarified its Specific Claims Policy in a 1982 document called Outstanding Business. This outlined the policies and procedures for dealing with specific claims. The policy has since been substantially reformed by the Specific Claims Resolution Act (2003), and Specific Claims Act (2008). Specific claims are now overseen by the Specific Claims Tribunal.
See more information about treaty in Canada.
Comprehensive claims +
The Canadian Government's Comprehensive Claims Policy was reaffirmed in 1981 in a publication entitled In All Fairness, which outlined the aims of the policy. Its primary purpose is to exchange claims to undefined Aboriginal rights for a package of clearly defined rights and benefits set out in a settlement agreement.
Section 35 of the Constitution Act, 1982 also recognises that Aboriginal treaty rights presently exist or may be acquired via land claims agreements. Substantial amendments were made to the Comprehensive Claims Policy in 1986 after the Coolican Report, which was produced as a result of extensive consultation with Aboriginal and other groups. The 1986 reforms provided for greater flexibility in land tenure and better definition of subjects for negotiation.
The Federal policy is implemented in the Province of British Columbia through a tri-partite treaty process established in 1993.
The Canadian Federal Government has subsequently introduced the Inherent Right Policy 1995, under which self-government arrangements may be negotiated as a part of comprehensive claims agreements. These arrangements may be constitutionally protected under section 35 of the Constitution Act, 1982.
In the provinces, the majority of lands and resources subject to comprehensive claims are under provincial jurisdiction. The Federal Government's position is that the establishment of certainty regarding such matters will benefit the provinces. As such, the Federal Government has committed to the participation of provincial governments in the negotiation process.
In 1998, the Federal Government published Gathering Strength, Canada's Aboriginal Action Plan in response to the recommendations of the Royal Commission on Aboriginal Peoples. It described its objectives as the renewal 'of the relationship with the Aboriginal people of Canada [which] builds on the principles of mutual respect, mutual recognition, mutual responsibility and sharing'. The Plan affirms that modern treaties will continue to be the basis for the ongoing relationship between Aboriginal people and the Crown.
Typically there are six stages in the comprehensive land claims agreement-making process:
- Submission of a statement of claim or statement of intent to negotiate;
- preparation for negotiations;
- initial negotiation, when issues are identified for discussion;
- substantive negotiation, when issues are discussed to produce the Agreement-in-Principle (AIP) that contains all the features of the eventual settlement;
- finalisation, when all parties formalise the agreement needed in the AIP to produce a final agreement and the agreement is enacted by settlement legislation;
- implementation of settlement legislation, after which the terms of the agreement are implemented by all parties.
The process of negotiating a final agreement may produce the following types of agreements:
- Framework Agreement
- Agreement-in-Principle
- Interim Measures Agreement
- Final Agreement
- Implementation Plan
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- For more information about a range of agreement making in Canada between First Nations peoples and others, see the Canadian Government's Crown-Indigenous Relations website.