- Footnote 1
The term "Aboriginal" is used throughout this report to denote First Nations, Inuit, and Métis peoples of Canada. "Crown" refers to the government of Canada, the government of a province or territory, or a combination. Unless otherwise intended by context, "Canada" means the government of Canada.
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- Footnote 2
Minister of Aboriginal Affairs and Northern Development, Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights (Ottawa: Public Works and Government Services Canada, 2014) [Interim Policy]. The Interim Policy is available. (PDF)
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- Footnote 3
See formal submission from the Union of BC Indian Chiefs (UBCIC) regarding the renewal and reform of Canada's Comprehensive Land Claims Policy. (PDF)
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- Footnote 4
See the First Nations Summit Resolution #1014.13.
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- Footnote 5
See Turn the Tables: Reject the Interim Land Claims Policy.
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- Footnote 6
Historically, policy and legislation affecting Aboriginal interests were developed largely without Aboriginal consent or participation (see John F. Leslie, "The Indian Act: An Historical Perspective" (2002) Canadian Parliamentary Review, vol. 25 no. 2).
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- Footnote 7
Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 [Tsilhqot'in].
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- Footnote 8
There are another five bands that have transboundary claims in the province.
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- Footnote 9
See Tla'amin Final Agreement online. (PDF)
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- Footnote 10
Beckman v. Little Salmon/Carmacks,  3 S.C.R. 103, at para. 12 [Little Salmon/Carmacks].
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- Footnote 11
Section 91(24) of the Constitution Act, 1867.
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- Footnote 12
See R. v. Sparrow,  1 S.C.R. 1075 [Sparrow].
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- Footnote 13
See British Columbia, Ministry of Agriculture and Lands, "Crown Land Factsheet,".
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- Footnote 14
Indian Act, R.S.C. 1927, c. 98, s. 141.
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- Footnote 15
Indian Affairs Branch, A Survey of Contemporary Indians of Canada, Economic, Political, Education Needs and Policies by H.B. Hawthorn, ed. (Ottawa: Indian and Northern Affairs, volume 1 1966, volume 2 1967).
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- Footnote 16
Indian Affairs and Northern Development, "Statement of the Government of Canada on Indian Policy, 1969" presented to the 1st session of the 28th Parliament by the Honourable Jean Chrétien, Minister of Indian Affairs and Northern Development.
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- Footnote 17
Canada, Task Force to Review Comprehensive Claims Policy, Living Treaties: Lasting Agreements — Report of the Task Force to Review Comprehensive Claims Policy (Ottawa: Department of` Indian Affairs and Northern Development, 1985), at pp. 11–12 [Living Treaties: Lasting Agreements].
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- Footnote 18
Calder et al. v. Attorney-General of British Columbia (1969), 8 D.L.R. (3d) 59..
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- Footnote 19
(1970), 13 D.L.R. (3d) 64
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- Footnote 20
 S.C.R. 313 [Calder].
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- Footnote 21
Indian and Northern Affairs Canada, In All Fairness: A Native Claims Policy — Comprehensive Claims, (Ottawa: Minister of Supply and Services Canada, 1981), at p. 11 [In All Fairness: A Native Claims Policy].
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- Footnote 22
Indian and Northern Affairs Canada, "Statement Made by the Honourable Jean Chrétien, Minister of Indian Affairs and Northern Development on Claims of Indian and Inuit People," Communiqué, 08 August 1973.
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- Footnote 23
In All Fairness: A Native Claims Policy, at p. 11.
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- Footnote 24
Federal legislation giving effect to the James Bay and Northern Quebec Agreement also unilaterally extinguished all "native claims, rights, title and interests of all Indians and all Inuit in and to the Territory" (provision 2.6). The effect was the extinguishment within the settlement area of the rights of Aboriginal groups who are not party to the agreement.
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- Footnote 25
Canada, House of Commons., Special Committee on Indian Self-Government, Indian Self-Government in Canada: Report of the Special Committee, 32nd Parl, 1st Sess, No 40 (12 October 1983 and 20 October 1983) (Chair: Keith Penner) [Indian Self-Government in Canada]; Living Treaties: Lasting Agreements.
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- Footnote 26
British Columbia, British Columbia Claims Task Force, The Report of the British Columbia Claims Task Force (28 June 1991) [BC Task Force Report].
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- Footnote 27
The British Columbia Treaty Commission is an impartial, arms-length organization established by federal and provincial legislation. Commissioners are nominated by the First Nations Summit (two members), Canada (one member), and British Columbia (one member).
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- Footnote 28
Specific claims are claims made by First Nations arising from Canada's obligations under historic treaties or Canada's management of First Nations' funds and assets.
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- Footnote 29
In 1990, the Supreme Court of Canada considered the nature of section 35(1) rights for the first time in Sparrow. In that decision, the Court established a test to determine if Aboriginal rights were extinguished before 1982. As a result of Sparrow, the government amended its claims acceptance criteria so that claims could be rejected only where the Crown exercised a clear and plain intention to unilaterally end a group's Aboriginal rights by lawful means.
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- Footnote 30
Department of Indian Affairs and Northern Development, The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government(Ottawa: Minister of Public Works and Government Services Canada, 1995), online.
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- Footnote 31
Note that issues relating to stand-alone self-government agreements are outside the scope of this report.
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- Footnote 32
See Aboriginal Affairs and Northern Development Canada, General Briefing Note on Self-Government and Comprehensive Land Claims Policies and the Status of Negotiations (February 2014), online for further information on each completed treaty. Note that treaty settlement land quanta have been rounded.
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- Footnote 33
A.C. Hamilton, Canada and Aboriginal Peoples: A New Partnership, Report of Hon. A.C. Hamilton, Fact-finder for Minister of Indian Affairs and Northern Development (Ottawa: Minister of Public Works and Government Services Canada, 1995) [A New Partnership].
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- Footnote 34
Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, 5 vols. (Ottawa: Minister of Supply and Services Canada, 1996) [Royal Commission Report].
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- Footnote 35
Office of the Auditor General of Canada, 2006 Report of the Auditor General of Canada to the House of Commons (Ottawa: Minister of Public Works and Government Services Canada, November 2006), Chapter 7 — Federal Participation in the British Columbia Treaty Process, online. [2006 Auditor General of Canada Report]. (PDF)
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- Footnote 36
Canada, Senate, Standing Senate Committee on Aboriginal Peoples, Honouring the Spirit of Modern Treaties: Closing the Loopholes, Interim Report, Special study on the implementation of comprehensive land claims agreements in Canada, 39th Parl, 2nd Sess (May 2008) (Chair: Hon. Gerry St. Germain, P.C.) [Honouring the Spirit of Modern Treaties].
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- Footnote 37
James M. Lornie, Final Report with Recommendations Regarding the Possibility of Accelerating Negotiations With Common Table First Nations that are in the BC Treaty Process, and Any Steps Required (30 November 2011) [Lornie Report].
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- Footnote 38
Canada, Senate, Standing Senate Committee on Aboriginal Peoples, A Commitment Worth Preserving: Reviving the British Columbia Treaty Process, 41st Parl, 1st Sess (June 2012) (Chair: Hon. Gerry St. Germain, P.C.) [A Commitment Worth Preserving].
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- Footnote 39
See Calder at 375; R. v. Van der Peet,  2 S.C.R. 507, at paras. 30–31 [Van der Peet].
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- Footnote 40
See, e.g., In re Southern Rhodesia,  A.C. 211 (P.C.); Oyekan v. Adele,  2 All E.R. 785 (P.C.).
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- Footnote 41
Mabo v. Queensland [No. 2] (1992), 175 C.L.R. 1.
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- Footnote 42
Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
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- Footnote 43
Van der Peet, at para. 47.
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- Footnote 44
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- Footnote 45
Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511 [Haida Nation]; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),  3 S.C.R. 550.
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- Footnote 46
Tsilhqot'in, at para. 97. Haida Nation confirmed, however, that the duty to consult "does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim" (para. 48).
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- Footnote 47
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 S.C.R. 388, at para. 1 [Mikisew Cree].
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- Footnote 48
Haida Nation, at para. 16.
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- Footnote 49
Brian Slattery, "Aboriginal Rights and the Honour of the Crown" (2005) 20 Sup. Ct. L. Rev. 433.
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- Footnote 50
R. v. White (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), aff'd (1965), 52 D.L.R. (2d) 481 (S.C.C.).
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- Footnote 51
See Haida Nation.
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- Footnote 52
See Mikisew Cree.
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- Footnote 53
See Little Salmon/Carmacks.
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- Footnote 54
Manitoba Métis Federation Inc. v. Canada (Attorney General),  1 S.C.R. 623[Manitoba Métis Federation].
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- Footnote 55
Manitoba Métis Federation, at paras. 79, 82–83, 97–99, 106–107, and 109.
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- Footnote 56
Canada does not maintain a single repository of section 35 proceedings across departments. Departments other than AANDC are often parties in claims involving section 35(1) rights and claims relating to the duty to consult. Since 2006, the number of claims based on a failure to consult continues to grow.
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- Footnote 57
This number only includes litigation under the control of the Aboriginal Affairs portfolio of the Department of Justice.
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- Footnote 58
This number includes Aboriginal title claims of any kind, including protective writs and both inactive and active litigation, but is only in relation to civil litigation matters. It does not include prosecutions where Aboriginal title is raised as a defence or duty to consult litigation that includes an allegation of a failure to consult on a claim of asserted title. Aboriginal title claims have been commenced in every Canadian jurisdiction.
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- Footnote 59
This amount is cumulative, from the commencement of the action to the outcome of the appeal in the Supreme Court of Canada. It does not include Canada's own legal costs which exceeded $9 million.
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- Footnote 60
To illustrate this point, the Manitoba Métis action was filed in 1981 but judgment was not pronounced until 2007. The Manitoba Court of Appeal affirmed the trial decision in 2010, and the Supreme Court of Canada's decision was pronounced in 2013.
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- Footnote 61
The evidence and submissions at the Delgamuukw trial took 374 days to complete. Tsilhqot'in proceeded to trial in 2002 and continued for 339 days over a period of five years.
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- Footnote 62
Delgamuukw v. British Columbia,  3 S.C.R. 1010 [Delgamuukw].
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- Footnote 63
For example, in the 15 years since the Supreme Court of Canada's decision in Delgamuukw, Canada has not yet developed an Aboriginal title policy.
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- Footnote 64
In Manitoba Métis Federation, Rothstein J. observed in a dissenting judgment that there are many examples in Canadian history where the Crown has acted in ways that would now be considered inappropriate, offensive, or appalling, but in his view it is best left to Parliament to determine how to handle those historical circumstances (at para. 264–5).
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- Footnote 65
See Sparrow and Tsilhqot'in.
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- Footnote 66
Haida Nation, at para. 37. The presentation of evidence in The First Nation of Nacho Nyak Dun v. Yukon (Government of), 2014 YKSC 69 provides an example of procedural efficiencies in Aboriginal litigation.
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- Footnote 67
See "Déclaration de souveraineté d'Atikamekw Nehirowisiw" (Web site not available in English). (PDF)
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- Footnote 68
An exception is Kenneth Coates and Dwight Newman, The End is Not Nigh: Reason over alarmism in analysing the Tsilhqot'in decision (Macdonald Laurier Institute: September 2014), online. (PDF)
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- Footnote 69
The council is composed of the political executives of the First Nations Summit, the BC Assembly of First Nations, and the Union of BC Indian Chiefs.
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- Footnote 70
Example 2 of a standard footnote that refers only to the word before it.
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- Footnote 71
Carrier Sekani Tribal Council, Editorial from Carrier Sekani Chiefs — Premier's Natural Resource Forum, 19 January 2015, online. (PDF)
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- Footnote 72
Interim Policy, at p. 6.
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- Footnote 73
Sparrow, at p. 1119.
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- Footnote 74
Mikisew Cree, at para. 1.
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- Footnote 75
Delgamuukw, at para. 186; Haida Nation, at para. 38; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  2 S.C.R. 650, at paras. 38 and 83 [Rio Tinto];
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- Footnote 76
A delegation of the chiefs of the Shuswap, Okanagan, and Couteau Tribes of British Columbia presented Prime Minister Laurier with a declaration of their position when he visited Kamloops on 25 August 1910. The document, entitled "Memorial to Sir Wilfred Laurier, Premier of the Dominion of Canada", was dictated by the chiefs to J.A. Teit and set out their positions with respect to their continued claim to Aboriginal title over their territories and their desire for a treaty with the Crown.
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- Footnote 77
Interim Policy, at p. 3.
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- Footnote 78
AANDC has developed a community well-being index that measures the quality of life of First Nations and Inuit communities relative to other communities based on indicators of education, income, labour force activity, and housing that are derived from Statistics Canada's Census of Population and combined to give each community a well-being "score". Between 1981 and 2006, the well-being of modern treaty communities increased at nearly twice the pace of historic treaty communities. Note this index does not separate Métis communities for comparison. The index has not been updated since 2006. For a more detailed description see Aboriginal Affairs and Northern Development Canada, Measuring Well-Being: The Community Well-Being (CWB) Index, online.
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- Footnote 79
Competitiveness is the measure of Canada against other jurisdictions in terms of the risk, cost, and time required for project development. Predictability relates to the establishment of a legal framework that settles the rights of parties and rules for development.
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- Footnote 80
Interim Policy, at p. 17.
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- Footnote 81
Interim Policy, at p. 12.
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- Footnote 82
2006 Auditor General of Canada Report, at pp. 16–17.
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- Footnote 83
For example, the Gwaii Haanas Agreement with the Haida Nation (1993); the Gulf Island National Parks Reserve Agreements with several First Nations (2004, 2006); and an interim arrangement with the Mi'kmaq of Nova Scotia for park access (2012, 2014).
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- Footnote 84
Natural Resource Canada, News Release, "Minister Rickford Announces New Aboriginal Partnership Projects in British Columbia" (23 January 2015), online.
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- Footnote 85
The $600 million Marshall response initiative was developed in response to the Supreme Court of Canada's decision in Marshall. It began in 2000 and ended in 2007.
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- Footnote 86
Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, at para. 7 [Cunningham]. For example, to illustrate, unlike the Indian Act, federal legislation has not defined the term Métis.
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- Footnote 87
See, for example, R. v. Powley,  2 S.C.R. 207; R. v. Goodon, 2008 MBPC 59; Cunningham; and Manitoba Métis Federation.
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- Footnote 88
Canada, Senate, Standing Senate Committee on Aboriginal Peoples, "The People Who Own Themselves": Recognition of Métis Identity in Canada, 41st Parl, 1st Sess (June 2013) (Chair: Hon. Vernon White), at p. 54 [Recognition of Métis Identity].
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- Footnote 89
Recognition of Métis Identity, at p. 17.
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- Footnote 90
The Métis Nation Protocol sets out the various areas that the parties will further examine, including Métis Nation governance and institutions, economic development, and Métis Aboriginal rights. The protocol also sets out that there will be regular meetings between different levels of representatives of the parties and that, where provinces agree, Canada will agree to participate in multilateral discussions with provincial governments and the national and provincial Métis organizations.
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- Footnote 91
See, e.g., the 2012 harvesting agreement entered into between the government of Manitoba and the Manitoba Métis Federation and the 2004 harvesting agreement between the government of Ontario and the Métis Nation of Ontario.
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- Footnote 92
Negotiating Tables: Key Facts
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- Footnote 93
Canada approved one final agreement in each of 2009 and 2010, one agreement-in-principle in each of 2011 and 2012, one final agreement in 2013, and two final agreements and one agreement-in-principle in 2014.
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- Footnote 94
The 1986 Policy acknowledged that serious concern had been expressed about the rate of progress in negotiations. When negotiations began under the BC treaty process in 1993, there was an expectation that up to 30 treaties would be negotiated before the end of the decade. It would take 15 years to complete the first final agreement under that process. The May 2002 report of the tripartite working group, Improving the Treaty Process, concluded that the BC treaty process was expensive and took too long to achieve results. Nine years later, the chief commissioner admonished all parties for their lack of urgency in treaty negotiations.
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- Footnote 95
Other departments are the lead on certain issues. For example, the Department of Finance leads in the negotiation of the taxation chapter and related agreements.
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- Footnote 96
Living Treaties: Lasting Agreements, at p. 87.
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- Footnote 97
The auditor general has noted that treaty negotiations are "one of the most controlled and inflexible processes in the federal government." 2006 Auditor General of Canada Report, at p. 23, para. 7.60.
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- Footnote 98
The federal steering committee on self-government and comprehensive claims is composed of assistant deputy ministers and is responsible for coordinate Canada's participation in treaty and self-government negotiations. It reviews and provides advice to Ministers on negotiating mandates, the negotiating process, framework agreements, agreements-in-principle and final agreements. The committee provides a regular ongoing review, at a senior level, of treaty priorities, negotiating strategies, and operational and policy issues that relate to negotiations, while maintaining an overview of activities across the federal government related to negotiations. Finally, the committee provides policy elaboration and advice, monitors progress and facilitates the participation of all federal departments and agencies as required in negotiation processes.
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- Footnote 99
The First Nations Summit proposed that treaty-making functions be placed under the responsibility of the Prime Minister's Office (see First Nations Summit, Treaty Negotiations & Canada's Comprehensive Claims Policy, A First Nations Summit Position Paper (02 May 2013), at pp. 10–11 [Summit Paper]). The Coolican task force reached a different conclusion, recommending that responsibility for treaties remain with AANDC where Aboriginal issues are an important priority: Living Treaties: Lasting Agreements, at p. 88.
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- Footnote 100
BC Task Force Report, at p. 24.
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- Footnote 101
The role I am proposing is similar to that of a case management judge who assists parties in the civil litigation process.
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- Footnote 102
Living Treaties: Lasting Agreements, at pp. 79–82.
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- Footnote 103
Auditor General Act, R.S.C., 1985, c. A-7, sections 9 and 11..
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- Footnote 104
The federal/provincial/territorial working group on Aboriginal consultation and accommodation works to more effectively coordinate consultation on a national level. In particular, it supports information sharing, provides advice and recommendations, and undertakes joint policy analysis on consultation and accommodation related issues.
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- Footnote 105
The BC Task Force Report contains useful information in a section entitled "Historical Background" about the historical relationship between the Crown and Aboriginal groups in British Columbia.
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- Footnote 106
As negotiations with the Nisga'a Nation began before the BC treaty process was implemented, they were concluded outside that process.
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- Footnote 107
The Commission's mandate is set out in the British Columbia Treaty Commission agreement which was completed in 1992 by the Principals.
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- Footnote 108
Tsawwassen First Nation Final Agreement, Maa-nulth First Nations Final Agreement, Yale First Nation Final Agreement, and the Tla'amin Final Agreement.
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- Footnote 109
See e.g., Tsimshian Tribal Council v. British Columbia Treaty Commission et al, 2005 BCSC 860; Spookw v. Gitxsan Treaty Society, 2014 BCSC 1100.
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- Footnote 101
Treaty Commission Act, R.S.B.C. 1996, c. 461 [Treaty Commission Act]; British Columbia Treaty Commission Act, S.C. 1995, c. 45 [British Columbia Treaty Commission Act].
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- Footnote 111
Treaty Commission Act, s. 5(3)(b) and British Columbia Treaty Commission Act, s. 5(3)(b).
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- Footnote 112
The two agreements are the negotiation loan management agreement between Canada and the Commission, and the negotiation contribution agreement between Canada, the Commission, and British Columbia.
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- Footnote 113
Only in the last two years has the Commission begun asking Canada and British Columbia for their negotiation work plans.
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- Footnote 114
Canada does not have a consistent funding approach across the country. In British Columbia, the Commission determines and allocates funding for First Nations participants. In other regions, Canada enters into bilateral loan agreements with each participating Aboriginal group based on established terms and conditions including the submission of approved work plans and budget proposals, year-end financial statements, and cost guidelines. Aboriginal groups receive a combination of contributions and loans wherever located. For some negotiations, Canada provides contribution funding without requiring Aboriginal groups to also borrow money. For example, Canada's proposal to negotiate incremental treaty and non-treaty agreements provides for contribution funding on a pilot basis. Negotiations that are initiated in response to litigation (e.g., the Mi'kmaq and Maliseet in the Maritimes) are also fully funded through contributions. Interest accrues on negotiation loan funding once an agreement-in-principle has been approved except in British Columbia where loans are interest free until after a final agreement has been completed.
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- Footnote 115
See Aboriginal Affairs and Northern Development Canada, Audit and Assurance Services Branch, Internal Audit Report: Audit of Management of Negotiation Loans" (February 2013), online [Internal Audit Report]. Of this amount, approximately $70 million is in the process of being repaid. The negotiation loans of 15 modern treaty groups have been repaid in full. Note that the federal contribution amounts include support for self-government negotiating tables. (PDF)
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- Footnote 116
See the Internal Audit Report.
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- Footnote 117
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- Footnote 118
Lornie Report, at p. 29.
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- Footnote 119
BC Treaty Commission 2014 Annual Report, at p. 2.
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- Footnote 120
Summit Paper, at pp. 18–20.
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- Footnote 121
See, for example, the BC Treaty Commission annual reports from 2009 through 2014.
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- Footnote 122
Aboriginal communities claiming the same traditional territory frequently clash over project development in those areas. Industry is frequently confronted with disputes between First Nations about potential impacts and the allocation of benefits associated with project development.
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- Footnote 123
Royal Commission Report, vol. 2, Restructuring the Relationship, at p. 166.
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- Footnote 124
Delgamuukw, at paras. 158–159.
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- Footnote 125
The 1993 Policy was silent.
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- Footnote 126
Living Treaties: Lasting Agreements, at p. 91.
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- Footnote 127
BC Task Force Report, at p. 17
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- Footnote 128
In 2013, the Summit declared overlapping territories a priority and directed a task group to consider solutions. Similarly, in 2014 the Union of BC Indian Chiefs passed a resolution that supported further engagement with Canada and British Columbia to advance the resolution of shared territory issues. Neither the Summit nor the Union is in a position to impose solutions where these disputes exist.
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- Footnote 129
BC Task Force Report, at p. 16.
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- Footnote 130
The Commission's definition of "First Nation" is one that has elements of "nationhood" which include: a shared sense of identity, language, laws and customs among the Aboriginal people; historical exercise of control over a distinct traditional territory that is not wholly shared or disputed; a degree of historical existence as a governing body; and a reasonably sizeable body of Aboriginal people able to sustain the effective negotiation and implementation of a treaty. See >BC Treaty Commission's Six-Stage Treaty Process: Stage 1: Filing a Statement of Intent to Negotiate a Treaty.
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- Footnote 131
Luuxhon v. Attorney General (Canada), 1999 CanLII 6180 (BCSC); Chief Allan Apsassin v. Attorney General (Canada), 2007 BCSC 492 [Apsassin]; Cook v. The Minister of Aboriginal Relations and Reconciliation, 2007 BCSC 1722 [Cook]; Sambaa K'e Dene First Nation v. Duncan, 2012 FC 204 [Sambaa K'e]; Tseshaht First Nation v. Huu-ay-aht First Nation, 2007 BCSC 1141 [Tseshaht First Nation].
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- Footnote 132
See Haida Nation. See also Rio Tinto, at para. 32.
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- Footnote 133
Cook, at paras. 13 and 134.
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- Footnote 134
See Apsassin; Tseshaht First Nation; and Cook.
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- Footnote 135
See Sambaa K'e. Agreements-in-principle are not legally binding and the boundaries of treaty settlement lands are generally not confirmed until the final agreement stage of negotiations. Despite this, the Federal Court held meaningful consultation cannot be postponed until the last and final point, and that momentum may develop even if preliminary decisions are not legally binding on the parties. The court held the impacts on the other group's rights were more than speculative in light of the limited amount of land available and decisions around land quantum and selection already made by Canada in the context of the treaty negotiations.
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- Footnote 136
Huron-Wendat Nation of Wendake c. Canada, 2014 CF 1154.
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- Footnote 137
BC Treaty Commission 2014 Annual Report, at p. 5.
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- Footnote 138
See Turn the Tables: Reject the Interim Land Claims Policy
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- Footnote 139
A New Partnership, at p. 13.
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- Footnote 140
Lambert J.A. discusses the history of the Douglas treaties and the rights granted under those treaties in R. v. Bartleman, (1984), 55 B.C.L.R. 78.
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- Footnote 114
Living Treaties: Lasting Agreements, at p. 3.
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- Footnote 142
For example, see text of treaties 1 and 2.
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- Footnote 143
Living Treaties: Lasting Agreements, at p. 2.
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- Footnote 144
Indian Self-Government in Canada, at pp. 113–116 and 147.
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- Footnote 145
Living Treaties: Lasting Agreements, at p. 13.
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- Footnote 146
Living Treaties: Lasting Agreements, at pp. 41–43.
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- Footnote 147
Living Treaties: Lasting Agreements, at p. 42.
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- Footnote 148
Department of Indian Affairs and Northern Development, Comprehensive Land Claims Policy (Ottawa: Minister of Supply and Services Canada, 1987), at pp. 11–12 [1986 Policy].
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- Footnote 149
86 Policy, at pp. 11–12.
Return to footnote 149 referrer
- Footnote 150
Royal Commission on Aboriginal Peoples, Treaty-Making in the Spirit of Co-Existence: An Alternative to Extinguishment (Ottawa: Minister of Supply and Services Canada, 1995) online. The conclusions in this interim report were reiterated in the final report. (PDF)
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- Footnote 151
The model envisioned three tiers of land: a core treaty settlement land area where Aboriginal jurisdiction and rights would be greatest and the role of the Crown would be limited; a second tier where both Aboriginal and Crown jurisdictions would operate and would need to be clarified, including co-jurisdiction and co-management; and a third tier where only Crown jurisdiction applied along with Aboriginal rights to gathering and cultural practices.
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- Footnote 152
A New Partnership, at p. 72.
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- Footnote 153
Canada did not accept all recommendations. The certainty models proposed by the Royal Commission and Mr. Hamilton envisioned that all of the parties' rights in the claim area would be set out in a treaty. Canada has not adopted this approach, viewing it as overly complex and detailed. In addition, a key component of Mr. Hamilton's certainty model is a general recognition that an Aboriginal party has Aboriginal rights in the treaty area. Canada did not agree to this approach until recently.
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- Footnote 154
See Summit Paper, at pp. 34–35.
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- Footnote 155
See Honouring the Spirit of Modern Treaties.
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- Footnote 156
Office of the Auditor General of Canada, 2003 Report of the Auditor General of Canada to the House of Commons (Ottawa: Minister of Public Works and Government Services Canada, November 2003), Chapter 8 — Indian and Northern Affairs Canada, Transferring Federal Responsibilities to the North (PDF), online and Office of the Auditor General of Canada, 2007 Report of the Auditor General of Canada to the House of Commons (Ottawa: Minister of Public Works and Government Services Canada, October 2007), Chapter 3 — Inuvialuit Final Agreement (PDF), online.
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- Footnote 157
See NTI v. Canada (Attorney General), 2012 NUCJ 11.
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- Footnote 158
See Little Salmon/Carmacks.
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- Footnote 159
See Manitoba Métis Federation, at para. 80.
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- Footnote 160
See Land Claims Agreements Coalition, Honour, Spirit and Intent: A Model Canadian Policy on the Full Implementation of Modern Treaties Between Aboriginal Peoples and the Crown (November 21, 2008), online.(PDF)
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- Footnote 161
Lance Finch, "The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice" (Paper presented at The Continuing Legal Education of BC Indigenous Legal Orders and the Common Law Conference, Vancouver, 15 November 2012).
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