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First Nations opposition continues after passing of Ontario’s Bill 5 | CBC News

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Many First Nations people in Ontario are continuing protests following the passing of Bill 5 in Ontario last week.

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In 1980, I was at the Skyline Hotel in Ottawa (now the Delta) and witnessed Prime Minister Pierre Trudeau come to a National Indian Brotherhood meeting of Chiefs. He asked the Chiefs to "treat Canada better than Canada has treated you," as he revealed his intention to patriate Canada's constitution from Britain - a bombshell that raised the question of whether Aboriginal and treaty rights would be part of the document.

From that salvo of Trudeau Senior to the initiatives of current prime minister Justin Trudeau, there has been an unyielding policy war of attrition toward Indigenous people (First Nations, Inuit and Métis). The current Liberal government might be raising the notion of getting rid of the Indian Act and restoring a nation-to-nation relationship, but history tells us the real objective is to hollow out and ultimately nullify any rights that Indigenous peoples have to meaningful self-determination.
The constitutional reform process
After Trudeau's announcement in 1980, Chiefs and Indigenous community members began to mobilize. The Justice Minister, Jean Chrétien, had initially agreed to demands by the Alberta and Saskatchewan premiers that Aboriginal and treaty rights be left out of the draft constitution. In response, the Union of British Columbia Indian Chiefs organized a train to travel across Canada with Ottawa as its destination - it was dubbed the "Constitution Express" by the organization - to demand that recognition of Aboriginal and treaty rights be put back into the draft.

In the United Kingdom, a group of leaders from historic treaty nations lobbied MPs and Lords against the so-called "Canada Bill" and even launched an unsuccessful court case in the UK to stop the patriation process. To counter the government's narrative about Canada having two founding nations, the term "First Nations" was coined, and the Chiefs reconstituted the National Indian Brotherhood as the Assembly of First Nations in 1982.

As a result of pressure brought to bear by Indigenous peoples and Canadians who supported them, section 35 recognizing Aboriginal and treaty rights was entrenched in the Constitution Act, 1982: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." A second section, 37, provided that a First Ministers' Conference be held within a year, and include on its agenda constitutional "matters that directly affect the aboriginal peoples of Canada."

The First Ministers' Conference of March 1983, which covered "identification and definition of the rights...to be included in the Constitution of Canada," as outlined in section 37, led to the Constitution Amendment Proclamation, 1983, which provided for at least two more First Ministers' Conferences touching on Aboriginal matters. The proclamation also amended section 35 to include land claims agreements as treaties within section 35.1, and to guarantee gender equality between Aboriginal men and women.

There were to be three more First Ministers' Conferences on Aboriginal matters (1984, 1985, 1987). The last one ended with a failure to reach an agreement on the meaning of section 35 rights between the representatives of the four national Aboriginal organizations, the Prime Minister, the premiers and the territorial government leaders.

Although there were many other issues on the agendas of those conferences of the 1980s, including Aboriginal title and historic treaties, the main issue was self-government. Was it an inherent right or a contingent, delegated right, granted by the Crown governments?

The Aboriginal leaders argued that the right of self-government was an inherent right already included in section 35, which needed only to be recognized properly by Crown governments. But the dominant metaphor that emerged about section 35, one articulated by the first ministers, was that section 35 was an "empty box," to be filled up with agreements negotiated with the federal, provincial and territorial governments. This view held that self-government was a delegated right dependent upon reaching an agreement with Crown governments.
Meech Lake, Charlottetown and beyond
The 1987 First Ministers' Conference on Aboriginal matters ended without agreement. Prime Minister Brian Mulroney moved on to the question of Quebec's "distinct society" status, and the Meech Lake Accord, proposing several constitutional amendments, was born. It died three years later in 1990, thanks to Manitoba MLA an Cree Chief Elijah Harper's running out the clock on the deadline for Manitoba to ratify the accord. (All ten provinces were required to ratify.) Harper opposed Meech Lake because First Nations issues from the section 37 process had not been resolved.

The Charlottetown Accord of 1992 included the explicit recognition of the "inherent right of self-government" in the proposed constitutional amendment package. A national referendum was held and the majority of the Canadian public voted against the accord.

In 1993, the Liberals won a massive majority government, leaving the Progressive Conservative Party with two seats. The Liberals during the election had committed to renewing the relationship with Aboriginal peoples by promising that "a Liberal government will act on the premise that the inherent right of self-government is an existing Aboriginal and treaty right."

But subsequent negotiations with national Aboriginal organizations, and a leaked memorandum to cabinet in 1995 on the subject of rights, made it clear that the "empty box" idea of section 35 persisted. Any inherent right would need to operate within the framework of the Constitution in harmony with other jurisdictions, and did not entail sovereignty as understood in international law. The war of attrition continued.
The current Trudeau government
Since the federal election of 2015, the Trudeau government has embarked on a top-down, nontransparent approach to federal Indigenous policy. There are reportedly 40 to 50 "exploratory tables" with Indigenous groups. We don't know the topics or with whom the federal government is holding discussions, but these discussions are supposed to feed into an equally opaque Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples.

The discussion results are to be presented to a "bilateral mechanism" - federal cabinet committees based on political agreements with three national Indigenous organizations representing the Inuit, Métis and the Assembly of First Nations, a Chiefs' organization. This stealth approach to change policy and law bypasses the legitimate rights holders: the Indigenous peoples. They are the ones who have a right to self-determination, not the national Indigenous leadership groups.

Meanwhile, the federal Minister of Justice, Jody Wilson-Raybould, has issued 10 principles respecting the government's relationship with Indigenous peoples to guide her federal policy and law review. But the 10 principles, and Canada's Indigenous policy writ large, continue to be based on the Constitution Act, 1867. The Constitution enshrined the division of powers between the federal and provincial governments, leaving no room for recognition of equal Indigenous jurisdiction and power. The Crown's assertion of sovereignty is at its core based on the " doctrine of discovery " - essentially, that the lands were vacant when Europeans arrived in the Americas and were there for the taking

Talks and negotiations based on these principles run counter to the right of Indigenous peoples to free, prior and informed consent over matters concerning their lands and resources, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Moving beyond the Indian Act?
The federal government recently announced it will split Indigenous and Northern Affairs Canada into two departments: Indigenous Services, and Crown-Indigenous Relations and Northern Affairs. Trudeau said the move demonstrated "that we are serious about taking the right steps to move beyond the Indian Act."

But the announcement signals only one thing to me: Our aspirations to decolonize as Indigenous peoples will be met with ongoing federal attempts to recolonize us, all part of the centuries-old Crown goals of "Indian" assimilation and the termination of collective Aboriginal and treaty rights.

Today's recolonization will likely unfold on two tracks.

First, section 91(24) of the Constitution, which states that the Crown has jurisdiction over "Indians, and Lands reserved for the Indians," will be used to impose national standards on the lives of Aboriginal peoples living on reserve through federal legislation, as has already been done with the First Nations Land Management Act, for example. With these laws, the Crown continues to set the parameters for how First Nations peoples are to live on their land, even once they opt out of the Indian Act.

Second, modern section 35 land claims and self-government agreements will be manipulated to modify, convert and extinguish the inherent sovereignty of First Nations. More self-government agreements will be signed with bands formed under the Indian Act. The political effect will be to convert these bands into a kind of ethnic Indigenous municipality rather than self-determining nations. Outlining a contingent set of rights through these agreements, rather than acknowledging the inherent right to self-determination, will in effect empty section 35 of any real political or economic meaning.

This is what I see Canada becoming without the Indian Act.

This outcome is not fair or just, and I predict the federal approach will lead to more conflict between Indigenous peoples and Canada. Remember that the modern high-profile conflicts between First Nations and Crown governments were led by grassroots Indigenous peoples, and not Indian Act band councils: Oka, Ipperwash, Gustafsen Lake, Burnt Church, Grassy Narrows, Caledonia and Elsipogtog.

The alternative approach to the Trudeau government's law and policy review for development of new federal legislation would be for Indigenous peoples to select representatives to sit at a First Ministers' Conference or constitutional conference to discuss implementation of UNDRIP, especially the articles on recognition of Indigenous self-determination and redistribution of stolen Indigenous lands, territories and resources; the agenda must include more than just dependency on federal fiscal transfer payments and federally designed programs and services. The selection of Indigenous representatives should be in accordance with article 18 of UNDRIP:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions. [emphasis added]

The outcome should be a constitutionally entrenched political agreement, not occasional edicts from a settler court, which is in a conflict of interest in claims against itself.
This article is part of the special feature The Indian Act: Breaking Its Stubborn Grip.
Do you have something to say about the article you just read? Be part of the Policy Options discussion, and send in your own submission. Here is a on how to do it. | Souhaitez-vous réagir à cet article ? Joignez-vous aux débats d'Options politiques et soumettez-nous votre texte en suivant ces directives.

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When moving past the Indian Act means something worse

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The history of constitutional talks and federal policy tells us that even when Canada talks about eliminating the Indian Act, Indigenous rights are at risk.

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Reserve 107 documentary shows peaceful path to reconciliation

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A Mennonite Central Committee Saskatchewan-produced documentary, Reserve #107, is generating worldwide attention not only for its content, but for what it represents. Reserve #107 tells the story of three people groups — Mennonites, Lutherans and Young Chippewayan First Nations — who have banded together to overcome injustic

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AFN chief says talks of Alberta separation ‘irresponsible,’ points to treaties | CBC News

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The national chief of the Assembly of First Nations says talk of Alberta separatism is ‘irresponsible’ and it’s “not smart” for politicians to make statements about it without consulting with First Nations first.

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First Nations have new weapon in traditional land disputes with Sask. government — maps | CBC News

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First Nations say the provincial government kept them in the dark as it was privatizing land within their traditional territories. But they have new weapons in this fight — maps.

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Canada broke its treaty promise, but Blood Tribe is barred from suing, Supreme Court rules | RCI

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High court upholds time limits on filing of treaty-based lawsuits

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The Canadian government likely owes Indigenous people almost $76 billion for currently filed land claims and lawsuits, recent official reporting says - a sum that's nearly seven times greater today than when Justin Trudeau became prime minister.

In 2015, Ottawa counted $11 billion in "contingent liabilities," which are potential legal obligations recorded only in cases where the probability of future payment is considered "likely," according to the 2023 public accounts of Canada.

This year's fall economic statement showed the vast majority of these liabilities - 95 per cent - stem from Indigenous claims against the Crown.

It's a spike the non-partisan parliamentary budget officer, who provides lawmakers with spending analysis, calls disconcerting.

"It is very, very significant," said Yves Giroux.

"It's a bit surprising to see these being multiplied by seven."

From the Liberal government's perspective, the increase means progress, according to Crown-Indigenous Relations Minister Gary Anandasangaree.

"I'm not surprised by it," he said.

"It is, I think, a part of the reconciliation process that we've undertaken. We have been consistent in ensuring that past harms are resolved."

The NDP's Indigenous Services critic disagrees.

"It means that Canada is still implementing its genocidal policies," Nunavut MP Lori Idlout said.

"And it means that Indigenous Peoples are not putting up with it anymore."

The scope of Canada's legal struggles with Indigenous people is revealed further in the public accounts and government statistics provided to CBC Indigenous.

The data show the two Indigenous-governing ministries spent a combined $89.8 million on lawyers last fiscal year, and currently face 1,152 open lawsuits. There were 136 cases resolved between 2014 and now.

Government-wide liabilities now total more than $2 trillion, but this includes claims and debts where the possibility of future payment is unlikely or unknowable, the accounts say.

Looking at the numbers, Idlout points to the persistent poverty, overlapping social crises and acute infrastructure deficit Indigenous people continue to grapple with. She predicts the Liberals will find only more trouble unless they change paths - and fast.

"If they don't, they're going to continue to be sued," Idlout said.

"That, to me, is abundantly clear."

Budget officer concerned

Giroux flagged the growth in contingent liabilities to lawmakers last month in a November analytical report.

"It is a bit concerning that they have increased so much," he told the Senate finance committee on Nov. 22.

"It raises the question as to how firmly in control is the government with respect to these claims."

Contingent liabilities are recorded when lawyers assess a claim and conclude the Crown is at least 70 per cent likely to lose in court and it has a dollar value on it, Giroux told CBC Indigenous.

And so the $76 billion represents not what Indigenous people may be owed for all grievances, but Ottawa's best guess at how much the Crown stands to lose through existing, credible specific claims, comprehensive land claims and lawsuits.

WATCH | Parliamentary budget officer says rise in liabilities 'a bit disconcerting:'

Giroux wonders if shifts in these legal assessments, an influx of new lawsuits or the possibility the bureaucracy has a poor grasp on existing ones explains the increase.

"You would think that, with successive governments having improved their relationship with Indigenous people, that the liabilities would have stopped growing at one point," he said.

Fix the problem instead of fighting, says Blackstock

Anandasangaree said the government "absolutely" has a grip on the claims and is righting historic wrongs through negotiation and reform.

First Nations child advocate Cindy Blackstock said the government will continue stacking up legal bills and be held liable for ever-greater sums of cash if it chooses to deny, stall and fight.

"When a credible report comes forward and it shows that there's an injustice, their first reaction should be to fix the problem, instead of fighting the victims," said Blackstock, executive director of the First Nations Child and Family Caring Society.

That was her experience after she and the Assembly of First Nations filed a human rights complaint over the underfunding of on-reserve child and family services in 2007.

After years of court battles, they secured a multibillion-dollar compensation order in 2019, which was later upheld in court, and Canada eventually agreed to a landmark $23.4-billion class-action settlement approved this year.

Blackstock said the discriminatory underfunding was reported internally 23 years ago, when the cost of fixing the shortfall was estimated at hundreds of millions of dollars.

She said the Canadian government will cost itself more in the end if it handles other allegations of discrimination - amid more proposed class actions popping up - the same way.

"Had they done the right thing back in 2000, they wouldn't have had to pay the $23.4 billion in compensation," Blackstock said.

"And children wouldn't have lost their childhoods."

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Federal liabilities 'likely' owed to Indigenous people grow to $76B under Trudeau | CBC News

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The Canadian government "likely" owes Indigenous people some $76 billion for their currently filed land claims and lawsuits, official financial reporting says - a sum that is nearly seven times greater today than when Justin Trudeau became prime minister.

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It's a tale as old as Canada itself: contested First Nations land rights, a lucrative land development, escalating tensions leading to excessive force and damaged relations. For those who know of the Oka Crisis of 1990, history seems to be repeating itself with the latest conflict over the development of a gas pipeline running through Wet'suwet'en territory in British Columbia. The prevailing strategy for dealing with First Nations land rights does not appear to have changed substantially in the last 30 years, leaving many wondering what it will take for the Canadian government to finally learn from its dismal record of protecting First Nations' rights and commit to the path of reconciliation.

Oka is a small village less than an hour outside of Montreal. Its original name is Kanehsatà:ke, a name given to it by the Kanien'kehà:ka (or Mohawk) who are the traditional custodians of the land. In 1717, the Seminary of St-Sulpice mission in Montreal was told to relocate, and French King Louis XV granted them the land encompassing Kanehsatà:ke. The understanding was that the Sulpicians would hold the land in trust for its First Nations inhabitants, but they reneged on this commitment and claimed sole ownership rights. With these newfound rights the Sulpicians began clearing land and selling off plots to European settlers, marking the beginning of a new era.

Even though they were not legally recognized as the owners of the land, the Mohawk continued to build their community around Kanehsatà:ke. An 1881 government initiative to force indigenous inhabitants to leave was largely unsuccessful, and five years later the Mohawk would create the land of "the Pines" that would become the center of the Oka Crisis over a century later. This land consisted of a mountain area where 70,000 to 80,000 pine trees were planted by Mohawk with the help of non-native settlers, after sand avalanches caused by a lack of stabilizing tree roots in the ground threatened the area. Over time the Pines became the home of a Mohawk burial ground, which only added to the controversy when the town decided to build a golf course on the land without the consent of the Mohawk. While the initial golf course development was successfully completed, a critical line was crossed with the announcement of plans to expand the golf course into the cemetery.

In March of 1990, the Mohawk erected a blockade to prevent the arrival of bulldozers scheduled to break ground on the golf course expansion. The municipality was granted an injunction ordering the dismantling of the barricade, but instead of giving up, the Mohawk strengthened their barricade and warriors were seen patrolling the pines. After a second injunction was served in late June, members from the neighbouring Mohawk communities of Kahnawà:ke and Akwesasne arrived to help defend the land and set up a protest camp. By July, the mayor of Oka had decided that the impasse had gone on for long enough and called for the Sûreté du Québec, Quebec's provincial police, to come in and enforce the injunction. An early morning raid staged with 100 police officers equipped with tear gas, concussion grenades, and assault rifles went terribly wrong when shooting broke out between the two groups, leading to the death of Corporal Marcel Lemay of the SQ. The police retreated, abandoning their cruisers and a bulldozer, and the prevailing Mohawk warriors used these to barricade the highway running through Kanehsatà:ke. The Mohawk warriors of Kahnawà:ke constructed a blockade in solidarity on the Honoré Mercier Bridge, one of the four main bridges connecting the metropolitan island of Montreal to the residential hubs of the south shore. Other First Nations communities in Canada followed suit, with people in places as far as British Columbia blockading roads and railways.

The blockading of the Honoré Mercier Bridge proved to be a tipping point for the many Canadians who until that point had merely been onlookers to the tensions brewing in Kanehsatà:ke. The disruption this action caused to thousands of peoples' daily commutes prompted an extremely racist backlash, with the residents of neighbouring Chateauguay attacking Mohawks driving through and lighting a Mohawk effigy on fire. Supplies to the entirety of Kanehsatà:ke were quickly cut off, even though there were still many civilians and children in the community. Already with one police officer dead and now facing daily outbreaks of violence, Premier of Quebec Robert Bourassa called on the federal government to intervene and send in the Canadian Armed Forces.

On August 20th, the Canadian Armed Forces were deployed, with 4,000 soldiers stationed in the area around Kanehsatà:ke and Kahnawà:ke. The armed forces successfully negotiated the removal of the blockade on the Honoré Mercier Bridge, but were not as successful on the Kanehsatà:ke front. Authorities instructed the citizens of Oka to evacuate, and fearing for their lives many of the elders, women, and children of Kanehsatà:ke fled by car into Montreal. Along the way they were greeted by angry rock-throwing mobs, resulting in several people being injured. In the end, the two sides reached a deal whereby the blockades would be taken down in return for the permanent cancellation of the golf course expansion. With the armed forces not expecting the sudden exodus from the surrender of the final remaining protestors, the closing act of the crisis quickly descended into chaos. During the ensuing altercation, Waneek Horn Miller, a 14 year old Mohawk resident of Kanehsatà:ke, was accidentally bayoneted in the chest. Luckily she survived, but Waneek was just one of the many civilians who came to harm during this conflict.

Finally after 78 days, the crisis came to an end, leaving a provincial police officer dead and hundreds of Mohawk civilians injured. The events led to the creation of the Royal Commission on Aboriginal Peoples, tasked with deepening consultation and cooperation between First Nations and governments across Canada. Now, 30 years later, how close are Canadians to actually achieving reconciliation with the First Nations who have been systematically abused for centuries? Despite the moratorium on further development in the Pines, the ownership of the Mohawk over the land has still not been recognized and is still legally held by developers and local government. This "on-going collusion of land fraud" has been formally decried and protested by First Nations activists, but so far the government has not moved to give the land back to its rightful owners. One of the Oka developers recently offered to "gift" some of the land back to the people of Kanehsatà:ke, a move that has been criticized for the tax benefits that the developer would still be extracting from land that does not belong to him. More importantly, the land would still not be directly held by the Mohawk but by the federal government, who would have the final say in its administration.

The history of the Oka Crisis and its impact is especially salient when taken into consideration with the Wet'suwet'en protests that began in late 2018. This time the conflict was centered around the construction of a natural gas pipeline planned to pass through traditional Wet'suwet'en territory in the province of British Columbia. Once again blockades were erected across Canada, beginning with roads leading to the actual site of development and expanding to encompass railway lines across Canada. The peaceful protest, similar to the blockading of the Honoré Mercier Bridge in 1990, was successful in increasing the visibility of the dispute and putting pressure on the federal government to come up with a resolution.

However, the economic disruption this entailed made the movement unpopular with many Canadians, and there has been an increase in hate speech and violent threats made against First Nations peoples. The Royal Canadian Mounted Police (RCMP) was dispatched to enforce a court injunction and remove a blockade in Wet'suwet'en territory, resulting in the arrest of 14 protestors. The publication of a report alleging the RCMP was instructed to use lethal force in the enforcement of the injunction, a claim that has not been verified or confirmed by the RCMP or reputable news media sources in Canada but seems to be supported by video footage of RCMP officers armed with rifles circling a blockade outpost, further aggravated the situation. The arrests and accusations of excessive force sparked significant controversy and a new wave of protests across Canada. Thankfully there have yet to be any fatal incidents recorded in this latest episode of land disputes between First Nations and the Canadian government, but there is no clear resolution in sight.

The Oka Crisis taught First Nations communities across Canada that the fastest way to make Canadians pay attention to their issues and come to the negotiating table was to disrupt their daily lives. Blockades were the perfect tool to accomplish this goal peacefully, but escalation motivated in part by a lingering racist colonial history led to violence and a breakdown in negotiations. Clearly, the Canadian government continues to fail to live up to its obligations to protect the rights of First Nations and correct historical injustices that have scarred indigenous communities for generations. "Reconciliation" becomes nothing more than window-dressing, a public relations motto that deflects from the costly issue of land ownership and reparations. Raising awareness of these injustices through the Royal Commission on Aboriginal Peoples and more recently the National Inquiry into Missing and Murdered Indigenous Women and Girls is all well and good, but what continues to be lacking are concrete actions seeking to rectify these wrongs. The government seems as eager as ever to call in armed forces instead of meeting at the negotiating table, and without a clear framework for land repatriation, reconciliation is a pipe dream destined to be enmired in pipeline development nightmares.

While the repatriation of all unceded land, which includes the major metropolis of Montreal, might not be the most feasible solution, that does not mean that partial repatriation and other compensatory measures should not be pursued. At the very least the government should ensure the return of land that has yet to be developed, like the Pines, to the Mohawk, and begin making payments towards the purchase of land that they are not willing to repatriate. This would ensure a steady flow of income for First Nations communities that can be used to provide community support services, cultural educational programs, and dependable infrastructure like electricity and potable water, essential resources which the Canadian government has been negligent in providing. Canada sadly cannot return to the past and fix its mistakes, but what the government can do is learn from history and leave a legacy future generations will be proud to uphold. The alternative is facing a major crisis every few decades and apologizing afterwards, a pattern that will take meaningful change to break.

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Bloody Blockades: The Legacy of the Oka Crisis

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It's a tale as old as Canada itself: contested First Nations land rights, a lucrative land development, escalating tensions leading to excessive force and damaged relations. For those who know of the Oka Crisis of 1990, history seems to be repeating itself with the latest conflict over the development of a gas pipeline running through Wet'suwet'en territory in British Columbia.

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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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Land Rights & Jurisdiction - Assembly of First Nations

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The AFN's Land Claims Policy Sector supports First Nations in negotiations over land claims, and in seeking new federal laws for land rights.