Through colonization, governments have destroyed and stolen First Nations' lands, territories and resources.
The Indian Act of 1876 officially banned First Nations people from land ownership and eventually allowed companies to extract resources on reserve land for nominal or no consideration at all.
Canada's failure to recognize Treaty rights continues to feed the socio‑economic divide between First Nations and Canadians.
Land is a fundamental asset for sustainable economic development for First Nations, and land rights are critical for self-determination.
Specific Claims Reform
Specific claims are claims made by First Nations against the Government of Canada for breaches of the Crown’s lawful obligations. Specific claims can arise where the Crown failed to meet its obligations under a Treaty or other agreement, or mismanaged First Nations’ lands or other assets.
For decades, First Nations have expressed concern with the conflict of interest in the current Specific Claims Policy and process. The Government of Canada is the defendant, manages the process, reserves for itself a unilateral period to review claims, and accepts or rejects claims based on its own legal advice. First Nations have called for a fully independent specific claims process to address the current conflict of interest.
In 2020, First Nations-in-Assembly passed AFN Resolution 09/2020 Jointly Develop a Fully Independent Specific Claims Process. This resolution calls on the Government of Canada to work in coordination with the AFN and Chiefs Committee on Lands, Territories and Resources to develop a fully independent specific claims process consistent with the the UN Declaration and based on the following principles:
- The Honour of the Crown: The specific claims process must be consistent with the Honour of the Crown.
- Independence of all Aspects of Claims Resolution: Specifically including funding and oversight of claims and their resolution that must be handled independently of Canada.
- Recognition of Indigenous Laws: The recognition of First Nations’ laws may impact the conduct of adjudication, dispute resolution and negotiation.
- No Arbitrary Limits on Compensation: There will be no financial constraints on settlements, such as the $150-million cap on the jurisdiction of the Tribunal or the Commission.
Co-developing an Independent Process
In the summer of 2022, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) received a mandate from Federal Cabinet to co-develop with the AFN an independent centre for resolving specific claims. The AFN and CIRNAC are working to establish the Specific Claims Implementation Working Group (SCIWG) to direct this co-development work.
In addition to fundamental reform, the AFN Lands Sector continues to advocate for fairness within the existing process. This includes working through a Joint Technical Working Group on Specific Claims and collaborating with First Nations representative organizations such as the BC Specific Claims Working Group, and First Nations National Claims Researchers to advance First Nations interests and priorities.
Ongoing advocacy issues are articulated through AFN Resolution 37/2021 Full Involvement of First Nations in All Aspects of Specific Claims Policy Development and AFN Resolution 38/2021 Protecting the Institutional and Judicial Independence of the Specific Claims Tribunal.
Read more on Specific Claims Policy Reform.
Additions to Reserve Reform
The Additions to Reserve Policy (ATR) and process manages the submission, review and approval of new reserve lands. Having the ability to add lands to existing reserves is critical for First Nations to meet the needs of growing populations, including housing, infrastructure, economic development, cultural and spiritual practices and education.
The existing ATR process is broken – it often takes years for the Government of Canada to approve simple additions, and decades to approve more complex proposals. There are currently more than 1300 pending ATR applications (2022) awaiting approval. Delay deprives First Nations of economic opportunities and makes community planning extremely challenging.
Some of the issues impacting the ATR process include:
- No clear policy mechanism to acquire lands for submission
- A lack of resources to support the development, submission and review of ATR proposals
- No clear service standards for federal officials
- Inconsistent application tracking
- No effective mechanism to address the interests of third parties, such as provinces, municipalities and Crown corporations, creating roadblocks
Reforming ATR Policy and Process
The AFN has numerous resolution mandates calling for the reform of the ATR policy and process including AFN Resolution 94/2018 Rejecting Canada’s approach to ATR legislation. National Chief RoseAnne Archibald’s Healing Path Forward also identifies ATR as a key national priority.
The CIRNAC minister’s 2021 Mandate Letter from the Prime Minister highlights and prioritizes ATR reform, while Federal Budget 2021 included a three-year commitment of $43 million dollars to support reform and address the backlog of outstanding proposals.
ATR Reform and the UN Declaration
The AFN is currently advocating to ensure ATR reform is consistent with the UN Declaration and makes space for the many unique priorities and regional realities of First Nations.
Ultimately, consistency with the UN Declaration requires that Canada’s ATR process allows First Nations to add lands to reserves quickly and efficiently, unlocking opportunities to grow and develop.
How First Nations can Shape ATR Reform
The AFN has released a national survey on ATR designed to support future advocacy.
First Nations Seeking Reserve Lands/Recognition
While most First Nations from coast to coast to coast have reserve land, dozens of First Nations do not. Other First Nations lack both reserve land and recognition by the Government of Canada. These First Nations are gravely impacted by the absence of lands and federal recognition. This is both a fundamental human rights issue and a grave injustice.
There are currently no open, transparent and effective mechanisms for these First Nations to address their basic needs for land and a nation-to-nation relationship. Without access to an effective redress mechanism, these First Nations are forced to engage in costly and prolonged litigation or rely on the political goodwill of the Government of Canada.
How the AFN is Addressing this Issue
In 2021, First Nations-in-Assembly passed AFN Resolution 47/2021 Justice for First Nations Recognition and Reserve Land, which calls for the AFN to take a comprehensive approach to address the issues facing AFN-recognized First Nations seeking reserve lands and/or recognition.
The AFN Lands Sector is advocating for the full involvement of AFN-recognized First Nations in reviewing and re-designing the New Bands/Band Amalgamation Policy being carried out by Indigenous Services Canada. Additionally, we are advocating for the establishment of a senior-level table to oversee and coordinate efforts to provide justice to AFN-recognized First Nations seeking reserves and recognition.
Land Claims Policies and Negotiations
The Comprehensive Land Claims Policy (CLCP) sets out the Government of Canada’s approach to the negotiation and settlement of First Nations land claims, often referred to as Modern Treaties. The CLCP is inconsistent with Canadian and international law and is grounded in the denial of First Nations land rights.
First Nations have clearly stated through AFN Resolution 25/2019 Support for a First Nations Led Engagement Process on Nation Building that the CLCP must be repealed and replaced with alternative approaches consistent with the UN Declaration and a full recognition of First Nations rights. These alternatives must be developed through a First Nations-led process that includes all First Nations.
While the Government of Canada has acknowledged the CLCP is highly problematic, falling well short of Canadian and international law, they have been unwilling to repeal the policy. As an alternative, they point to the ‘exploratory’ Recognition of Indigenous Rights and Self-Determination Discussion Tables (RIRSD) which theoretically create flexibility for First Nations and the Government of Canada to jointly develop negotiation mandates based on First Nations priorities.
Challenges with RIRSD
The RIRSD process was initiated in 2015 through a secret Cabinet Mandate and lacks transparency, largely due to inconsistent and poorly communicated public facing principles and policy guidelines. In addition, strict confidentiality requirements further disadvantage First Nations. While federal negotiators can share information across negotiation tables, First Nations cannot.
Creating flexible and principled approaches to negotiate outstanding First Nations land rights is imperative. Those processes must be transparent and consistent with the Honour of the Crown and the UN Declaration.
The AFN Lands Sector continues to advocate for the repeal of the CLCP, and for a clear articulation of existing federal negotiation positions, policies and priorities. This is a critical first step in beginning to address First Nations land rights – and central to reconciliation.
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