Unit 3

Aboriginal Land Claims

Aboriginal land claims originate in the understanding that Aboriginal people have rights of traditional use and occupancy of parts of what is now Canada. Such claims have two bases: first, in some regions of Canada, rights based on use and occupation have not been extinguished, either by treaty or by legislation; then, in general, Aboriginal claims arise from the contention of Aboriginal peoples that the federal government has not lived up to its obligations under the Indian Act, or has failed to fulfil the terms of treaties. The celebrated Calder decision of the Supreme Court of Canada in 1973 made it clear that Aboriginal rights exist in Canadian law. In this unit, we look at the issue of Aboriginal rights as they affect land claims and other fiduciary (trusteeship) responsibilities of the federal government. We examine the claims policy of the government, and review some of the comprehensive claims agreements that have been negotiated with various Aboriginal peoples. We also investigate the obstacles that have arisen in settling land claims.

In this unit, we also examine judicial decisions and land claim negotiations as a point of self-determination and autonomous decision making. The article by Thomas Berger on the Nisga’a land claim offers a good starting point for our exploration of this issue, as it links land claims to Aboriginal rights and human rights. It also provides us with a brief historical introduction to land claims, and it summarizes some of the important judicial decisions in Canada to show us how judges approach cases that involve Aboriginal rights and land claims. The article by Keith Crowe gives us a general view of the types of land claims made by Aboriginal peoples between 1970 and the late 1980s. It also provides a glimpse of the land claims negotiation process, which pits Aboriginal representatives and their lawyers against skilled negotiators representing the federal government, provincial governments, and resource corporations. The reading from the textbook by James Frideres and René Gadacz, besides giving a historical account of Aboriginal claims, also lists the different types of claims on the federal government that can be advanced by Aboriginal peoples, and outlines the comprehensive claims policy of the federal government. The article by Harvey Feit deals with the first modern, comprehensive, Aboriginal rights agreement in Canada. It describes the political context of the negotiations, and discusses the significance of the agreement to the Aboriginal peoples of James Bay and Northern Québec.

We examine the economic provisions of a modern treaty by analysing the James Bay and Northern Québec Agreement and the Yukon Agreement-in-Principle (as discussed in the reading by Rick Ponting). Billy Diamond, one of the main Aboriginal negotiators of the James Bay and Northern Québec Agreement, reflects on the impact of the James Bay hydro-electric project fifteen years after the conclusion of the agreement. We then examine some of the terms and sections of the Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada. We continue our exploration of this topic by discussing the views of an anthropologist, Robin Ridington, and a historian, Robin Fisher, on the judgement rendered by Chief Justice Allan McEachern in Delgamuukw v. B.C. We consider the land claim case of the Gitksan and Wet’suwet’en peoples and then examine the Delgamuukw decision rendered by the Supreme Court of Canada. The unit concludes with a review of the findings of the Royal Commission on Aboriginal People related to treaties and modern day treaties, and land claims and their negotiation.

Objectives

After completing this unit, you should be able to

1. discuss the history of Aboriginal claims in Canada.
2. discuss the main judicial opinions of federal courts on Aboriginal claims.
3. assess the implications of the James Bay and Northern Québec Agreement and the Yukon Agreement-in-Principle for the self-determination and self-government of Aboriginal peoples in the areas covered by the agreements.
4. identify the principles in the Nunavut Land Claims agreement that seem to accord with the terms of the pre- and post-Confederation treaties and with the James Bay and Northern Québec Agreement.
5. discuss how the autonomy of Aboriginal governments is addressed in the Nunavut Land Claims agreement.
6. discuss the Aboriginal claims policy of the federal government.
7. list the types of claims that Aboriginal peoples can advance against the Canadian government.
8. list the guiding principles with respect to land claims established by the Supreme Court of Canada in the Delgamuukw decision.
9. list the principles of negotiation established by the Royal Commission on Aboriginal peoples.