Le style canadien de la réforme foncière: un regard d'ensemble sur les droits des aborigènes et sur les règlements en matière de revendications territoriales

Le propos de cet article est de résumer la nature des droits des natifs du Canada et les règlements en matière de revendications territoriales qui ont conduit à la plus grande redistribution des ressources du Canada. En premier lieu, il analyse les racines historiques des revendications territoriales des natifs et, en second lieu, l'impact qu'a eu sur les droits des natifs le système de gouvernement copié du modèle européen durant les quatre derniers siècles. Les impacts négatifs sur les communautés des aborigènes sont bien documentés par la littérature, ainsi que leur mise à l'écart due à des traités mal interprétés, au système des réserves indiennes et à une législation archaïque et paternaliste. Plutôt que d'insister sur ces injustices, cet article montre comment et pourquoi les premières populations du Canada (les peuples de la première nation) sont arrivées à rétablir leur revendication à de larges étendues de territoires riches en ressources. Cet article ébauche aussi certains des sujets liés à la gouvernance qui devraient maintenant être résolus pour soutenir la nouvelle distribution du territoire et du pouvoir.

Reforma agraria al estilo canadiense: los derechos de los aborígenes y las liquidaciones de las reclamaciones territoriales desde una perspectiva general

Este artículo tiene como objetivo hacer una síntesis de la naturaleza de los derechos de los nativos de Canadá así como de las liquidaciones de las reclamaciones territoriales que han provocado una profunda redistribución de los recursos en dicho país. En primer lugar, el artículo analiza las bases históricas de las reclamaciones territoriales de los nativos y el impacto que el sistema de gobierno, basado en el modelo europeo, ha tenido sobre los derechos de los nativos en los últimos cuatro siglos. Son muchos los documentos que tratan temas como las repercusiones negativas en las comunidades aborígenas, la marginación de las mismas debido a tratados insuficientemente interpretados, el sistema de reservas indias y una legislación arcaica y paternalista. Este artículo, más que detenerse en analizar estas injusticias, muestra cómo y por qué los pueblos originarios de Canadá (la Primera Nación) han logrado establecer sus reclamaciones en grandes extensiones de tierra rica en recursos. Asimismo, se destacan algunas cuestiones de gobierno que cabe resolver en este momento para poder contribuir a la nueva distribución de tierra y poder.

Canadian land reform: an overview of Aboriginal rights and land claim settlements

S. Nichols and M. Rakai

Sue Nichols and Mele Rakai are in the Department of Geodesy and Geomatics Engineering, University of New Brunswick, Fredericton, Canada; e-mail: [email protected] and [email protected]

This paper summarizes the nature of native rights in Canada and the land claim settlements that have led to a major redistribution of natural resource rights in the country. The paper first reviews the historical basis for the native land claims and the impact that the system of European-based governance has had on native rights over the last four centuries. The negative impacts on the Aboriginal communities, including their marginalization through poorly understood treaties, the system of Indian reserves and archaic, paternalistic legislation are well documented in the literature. Rather than dwell on these inequities, the paper illustrates how and why First Nation peoples in Canada have come to re-establish their claims to large tracts of resource-rich lands. It also outlines some of the governance issues that need to be resolved in order to support the new distribution of land and power.

INTRODUCTION

One of the world's major land reforms, in terms of area of land and scope of resources involved, is taking place in Canada. It is centred on the recognition and reallocation of rights to land and natural resources for Canada's Aboriginal people.¹  The reforms have caused some conflict and much rethinking about concepts such as land resource ownership and governance. Certainly, in North America, such large-scale reallocation of rights has not occurred since colonial powers took control of the "newly discovered" continent and granted these vast lands to European settlers from the early 1600s onwards.²  How these lands were "acquired" from the Aboriginal populations and how the promises made at the time became distorted and misunderstood are two major bases for the land claims and settlement processes today.

The recognition of an underlying Aboriginal title to land in Canada dates only from court cases in the 1970s. This growing legal principle and the concurrent land settlement processes put in place by the federal government have led to an official transfer of sometimes large tracts of land back to First Nations.³While most of the major settlements are located in the northern regions of the country and in the province of British Columbia on the Pacific Ocean, recent court cases have also questioned and interpreted the role that First Nation peoples play in fisheries and forest management beyond the land claim process.

The purpose of this paper is to provide an overview of the nature of treaties, Aboriginal rights and land claim settlements in Canada that have led to a major redistribution of natural resource rights in the country. The paper first reviews the historical basis for the Aboriginal land claims and the impact that the system of European-based governance has had on Aboriginal rights over the last four centuries. The negative impacts on the Aboriginal communities, including their marginalization through poorly understood treaties, the system of Indian reserves and archaic, paternalistic legislation, are well documented in the literature. Rather than dwell on these inequities, the paper illustrates how and why Aboriginal peoples in Canada have come to re-establish their claims to large tracts of resource-rich lands. It also outlines some of the issues concerning dispute resolution, governance and divergent legal concepts and cultural values of land that must now be resolved in order to support the new distribution of land and power.

The Aboriginal peoples of Canada

The generally accepted scientific theory,⁴  based on archaeological and climatic evidence, is that the peopling of Canada began when First Nation hunters migrated from Asia to North America across Beringia - a land bridge that connected Alaska and Siberia during the Pleistocene epoch. They subsequently settled or used nearly every part of what is today called Canada but in the process created myriad forms of culture and land use based on natural resource opportunities.

On arrival in North America in the sixteenth and seventeenth centuries, European explorers and later settlers found long-established Aboriginal societies that were diverse, culturally rich and complex. Bell (1997) reports that there were about 50 Aboriginal languages being spoken in Canada at the time, and the population was estimated to be between 500 000 and 2 million. Most Aboriginal societies in the northern parts of Canada were hunter-gatherers, reflecting natural adaptation to the harsh northern climate and the generally seasonal nature of food resources. However, the Iroquois, numbering as many as 60 000 people in what is now southern Ontario, were farmers. Other societies managed uncultivated plants such as wild rice. The peoples of the northwest Pacific coast (now the province of British Columbia) probably had the densest population of any non-agricultural society anywhere in the world - made possible by the rich and diverse resources on the coast. Their population before European settlement was estimated as being as high as 200 000. As much as 93 percent of the Aboriginal population in Canada was decimated from the sixteenth century onwards by the spread of European diseases such as smallpox for which there was little immunity (Bell, 1997).

Before the arrival of Europeans in Canada, Aboriginal communities were both self-governing and self-sustaining. With the exception of those of the Pacific coast, Aboriginal societies in Canada were based on egalitarianism in which individuals did not have coercive power or control over other members of the society. However, the sedentary societies of the west coast were hierarchical, in keeping with their higher population densities (Bell, 1997). Indians⁵  or First Nations provided assistance to European newcomers who, to survive in North America, were reliant on their goodwill, in particular that of the explorers and fur trappers such as the French Canadian voyageurs⁶  who explored the vast interior of the continent making way for eventual settlement. Since the time of the first contact, Europeans and Indian peoples in North America have entered into agreements in an effort to reconcile or accommodate their divergent interests and aspirations (DIAND, 1985).

Initial relationships in the sixteenth and seventeenth centuries between Europeans and the Aboriginal peoples of Canada were based on trade. The success of the European fur trade depended on good relationships with the Aboriginal peoples (Bell, 1997: 6):

"For example, while the French typically asserted sovereignty over their Aboriginal trading partners, in practice, the French acknowledged the Iroquois rights to their territories and the Iroquois power to grant lands and hunting rights to French settlers. For their part, Aboriginal peoples became increasingly reliant on European trade and protection and found themselves increasingly overshadowed by European military power ...

The Royal Proclamation of 1763 reserved a vast territory beyond the colonies to the exclusive use of the Aboriginal nations and provided that Aboriginal lands could only be alienated through agreement with the Crown. Shortly after, when the English gained greater military power over Aboriginal peoples, the relationship shifted fundamentally, from one in which the English were primarily concerned with peace to one in which the primary goal was the acquisition of land from Aboriginal peoples."

TREATIES AND ABORIGINAL TITLE

According to the Canadian government, 67 historic Indian treaties are known to have been made between the Crown and the Indian people of Canada. Over the years, the courts have assessed the validity of previously unknown historic Indian treaties, and the list of known historic Indian treaties is likely to continue to grow as a result of future court decisions (DIAND, 1985).

The importance of treaties in Canada

Wildsmith (1985) has suggested that treaties can be seen as analogous to legislation, since Indian treaties predate legislation such as the Indian Act to arrange relations legally between the government and the Indian peoples. He argued that court cases that have interpreted and applied treaty provisions have made it clear that the Indian treaties constitute legally enforceable obligations. This point has been further emphasized in a recent decision involving treaties between the British government and Mi'kmaq (formerly spelled Micmac) peoples in eastern Canada (Coates, 2000).

From the perspective of the Canadian government and courts, an Indian treaty is an agreement between the Crown and a specified group or groups of Indian people (Treaty First Nations) in which the parties created mutually binding obligations that were to be solemnly respected. The treaty sets out, generally in writing, the promises, obligations and benefits to and of the respective parties to the treaty (DIAND, 1997).

The Indians or First Nations of Canada view the treaties as an Indian Magna Carta (Cardinal, 1969). The treaties are important to Indians because they entered into the negotiations with faith, with hope for a better life, and with honour. Cardinal (1969: 28-29) wrote further that:

"The Indians entered into the treaty negotiations as honourable men who came to deal as equals with the queen's representatives ...

... Our leaders mistakenly thought they were dealing with an honourable people who would do no less than the Indians were doing - bind themselves, bind their people and bind their heirs to honourable contracts."

In its review of treaty-making in Canada, a task force appointed by the government to review its comprehensive claims policy, wrote (DIAND, 1985 :1-2):

"Since the earliest contact, Europeans and Indian peoples in North America have entered into agreements in an effort to reconcile or accommodate their divergent interests and aspirations. The earliest treaties were signed to formalize military alliances with the Indian nations. When the colonial powers became more firmly established in North America, they sought to assert greater control over the land and, through settlement, to exploit the resources more directly. Treaties involving land became more important and commonplace when the Europeans' desire for private ownership and exclusive use of the land conflicted with Indian hunting, trapping and other traditional uses of it. By entering into these treaties, the government formally recognized the existence of Indian political communities and of their interest in the land, and implicitly recognized the social, economic and political rights of the Indian peoples.

Treaty making was based on the principle of obtaining the consent of Aboriginal groups. Because of the great imbalance in power and the difficulties in communication between the Europeans and Indian peoples, however, the basis for genuine negotiation and consent did not always exist."

During the nineteenth century, the territories of Aboriginal peoples within much of Canada were taken in huge land cession treaties in exchange for relatively small reserves and promises, among others, of hunting and fishing and other rights. Many Aboriginal peoples whose ancestors entered into those treaties dispute the accuracy of these written treaty terms. Instead of giving up their lands to the Europeans, Aboriginal peoples maintain that the agreements involved sharing their lands with the Europeans, not ceding them.

Explaining the purpose of treaty-making from an Indian perspective, Cardinal (1969: 29) wrote in his seminal response to a government white paper that promoted assimilation of Aboriginal peoples:

"The treaties were the way in which the white people legitimized in the eyes of the world their presence in our country. It was an attempt to settle the terms of occupancy on a just basis, legally and morally to extinguish the legitimate claims of our people to title to the land in our country. There never has been any doubt in the minds of our people that the land in Canada belonged to them. Nor can there have been any doubt in the mind of the government or in the minds of the white people about who owned the land, for it was upon the basis of white recognition of Indian rights that the treaties were negotiated. Otherwise, there could have been nothing to negotiate, no need for treaties."

For the British colonialists, the process of treaty-making in Canada was a practical and efficient process for initially providing access to a lucrative fur trade and, later, for acquiring Aboriginal land and resources. As Bell (1997: 8) further explains:

"Treaty making was certainly more efficient than acquisition by conquest. Acquisition by agreement as a process of first choice was part of British colonial policy. The English and Canadian governments acquired everything that could be acquired by war, but with less effort and risk, by entering into the large land surrender treaties of the eighteenth and early nineteenth centuries which covered much of Canada. The English and non-Aboriginal Canadians essentially acquired all the land and resources that built on the wealthiest nations in the world, in exchange for allowing the Aboriginal peoples to shelter and feed themselves, which removed at the time the burden of supporting the Aboriginal populations."

Eastern Canada: maritime peace and friendship treaties (1725-1779)

The earliest treaties were signed in eastern Canada, in what is now Nova Scotia, New Brunswick, Prince Edward Island and parts of Quebec and Newfoundland. They were designed to formalize military alliances with the First Nations, as mentioned previously. They therefore did not involve the surrender of any land, since the main concerns of the British colonial administration at the time were to end hostilities between themselves and the First Nations and to establish ongoing peaceful relations. In exchange for agreeing to keep the peace and respect the British civil and criminal law (and thereby facilitate the peaceful colonization of the territory by European settlers), the First Nations were promised by the Crown that they could continue to hunt and fish, trade with the British and continue their customary and religious practices (DIAND, 1997). These rights have recently been upheld by the Supreme Court of Canada in a landmark case (Marshall vs Canada, 17 December 1999). In eastern Canada, the case has reopened the question of Aboriginal rights to land and coastal resources, also possibly including offshore petroleum and minerals (Coates, 2000). The nature and scope of the impact of the Marshall decision continues to be hotly debated.

Western Canada: land cession treaties

The Canadian government (DIAND, 1982) asserts that many land cession treaties were made with the Indian people of western Canada for the surrender of their interest in the land after the American War of Independence (1775-1783). The government further points out (DIAND, 1982: 175):

"Initially these involved one time cash payments, but in later surrenders, such as the Robinson-Huron and Robinson-Superior treaties of 1850, the Crown undertook to set aside reserves and to grant annuities and other considerations for the benefit of the Indian people.

After Confederation, 13 treaties were concluded between the Indians and the Government of Canada. Eleven - the so-called numbered treaties - extend from the Quebec border, covering all of northern Ontario, and across the prairie provinces into northeastern British Columbia, southeastern Yukon and the Mackenzie Valley in the Northwest Territories. Most post-confederation treaties in what are now the prairie provinces were made before the provinces came into being or provincial boundaries were finally determined.

Features common to many of the western treaties include the provision of reserve lands; gratuities; annuities; medals and flags; clothing to chiefs and councillors; ammunition and twine; and schooling where requested. Treaty No. 6, covering central Saskatchewan and Alberta, also provided for a medicine chest and for assistance during times of pestilence and famine."

Aboriginal title and modern-day treaties (land claims)

Before 1969 land claims were dealt with on an individual basis, and there was no general policy regarding the resolution of land claims. Despite the fact that potentially many legitimate claims existed, only a few claims were lodged, for the following reasons:

• until 1951, the Indian Act forbade Indians from hiring a lawyer to pursue land claims;
• intimidation by the federal government of its guardian/ward relationship with First Nations, through its control of the money allocated for First Nations;
• in British Columbia, there was non-recognition of Aboriginal title⁷  by the provincial government, despite the lack of treaties in British Columbia;
• lack of a consistent claims policy allowed individual civil servants to influence the outcome of a claim or grievance.

However, the treaty-making process continues in present times, since large areas of Canada, such as the northwest territories, British Columbia, Newfoundland, Nova Scotia, New Brunswick, Prince Edward Island and Labrador are not covered by historical land surrender treaties. Modern-day treaties are better known as land claims and the settlement of these claims has resulted in some of the largest land redistribution in the world.

THE PROGRESS OF COMPREHENSIVE CLAIMS

The federal government's White Paper on Indian Policy of 1969 was introduced with the intention of completely assimilating Indians into mainstream Euro-Canadian society by making Indians "equal citizens" and fostering the proposition that Aboriginal title had long been extinguished and therefore no longer existed. This resulted in uniting Aboriginal groups across Canada for the first time to persuade successfully the federal government to ignore the proposals contained in the white paper. In addition, the Indian Claims Commission was established. However, as noted by Barber (1974), it operated under a very limited mandate of reviewing and studying the grievances concerning Indian land claims, and was restricted to recommending to the government how the claims could be resolved. The Commission was disbanded in 1977.

The 1973 Calder decision, which confirmed the existence of common-law Aboriginal title, led to the establishment of a Comprehensive Claims Policy by the federal government. The government effectively forced First Nations into negotiating rather than litigating land claims by waiving its reliance on any statute of limitation or doctrine of laches for negotiations, and not waiving it for litigation (i.e. the government would apply any relevant statute of limitation or the doctrine of laches for any lawsuit brought against it by a First Nation). Landmark cases have continued to be fought, however, as rights to natural resources under certain treaties and the land claims process itself are being interpreted by the courts.

Land claims arise out of the failure of the government to carry out its obligations to First Nations, as a result of the Aboriginal title of First Nations. The Royal Proclamation of 1763 was the first British policy that recognized Aboriginal title and explicitly set out how it could be extinguished. The government distinguishes between two types of land claims in Canada - comprehensive claims and specific claims. Moss and Niemczak (1991: 1) define the two types of claims as follows:

"Specific claims are defined as claims arising from specific unfulfilled legal obligations of the federal government (such as unfulfilled treaty provisions respecting reserve land entitlement). Current federal policy allows for the settlement of such claims by land grants or cash compensation.

Comprehensive claims are essentially composed of a legal element and a factual element. The legal element is a viable legal claim to unextinguished Aboriginal title through demonstrating that the territory in question is not covered by a treaty or a claims agreement and that Aboriginal title has not been extinguished by the Crown. The factual element must demonstrate traditional and, under current policy, continuing use and occupancy of the claimed territory by the claimant group since time immemorial."

The government provides contributions and loans to Aboriginal claimant groups so they can research and negotiate their claims (DIAND, 2001). In British Columbia, however, the Government of Canada, together with the provincial government and the First Nations Summit, has established the British Columbia Treaty Commission (BCTC). The BCTC is a neutral facilitating body that allocates federal and provincial funding to Aboriginal groups involved in negotiations in the province (DIAND, 2001).

Mandamin (1997) has noted that the first of the modern-day treaties were the 1975 James Bay and Northern Quebec Agreements between the Crown and the Cree and Inuit of northern Quebec. Similar agreements settling Aboriginal comprehensive land claims include the Inuvialuit Agreement of the western Arctic, the Yukon Agreement, the Nunavut Final Agreement of the eastern Arctic, and the Nisga'a Final Agreement in British Columbia. The negotiation of similar agreements continues in the Mackenzie region of the Northwest Territories and in British Columbia.

These modern-day agreements are recognized as treaties in Section 35(3) of the Canadian Constitution Act, 1982:

"For greater certainty, in subsection (1) 'treaty rights' includes rights that now exist by way of land claims agreements or may be so acquired."

The Coolican Report (DIAND, 1985: 5-6) noted that the federal government has:

"... consistently approached agreements with Aboriginal groups, whether they were treaties or modern land claims agreements, with the objective of finality. It has aimed to secure clear title to the land for development and to guarantee that no future claim based upon Aboriginal title could be made upon the land. Although the government has expected that Aboriginal peoples eventually would be absorbed into the dominant society, it also has felt obligated to protect them from the negative consequences of rapid social and cultural change until they have been assimilated.

Usually, Aboriginal peoples have approached the agreements as vehicles for the recognition of their unique historical position as the original inhabitants of Canada and for the provision of guarantees for their continued social and cultural distinctiveness in the future."

Given the different expectations of the signatories, it is not surprising that the terms of the agreements have been the subject of continuing debate. Thus, as concluded in the Coolican Report (DIAND, 1985: 6), to date, treaties and modern settlements have provided neither the finality desired by government nor the guarantee for the future desired by Aboriginal peoples.

The status of comprehensive claims

Since the establishment of the Aboriginal or native land claims policy in 1973, 13 comprehensive claims have been settled and the resultant agreements have been signed and ratified by parliament. The 13 settled comprehensive claims (with the year of settlement) are as follows (DIAND, 2000):

1. The James Bay and Northern Quebec Agreement (1975)
2. The Northeastern Quebec Agreement (1978)
3. The Inuvialuit Final Agreement (1984)
4. The Gwich'in Agreement (1992)
5. The Nunavut Land Claims Agreement (1993)
6. The Sahtu Dene and Metis Agreement (1994)
   There are seven Yukon First Nation Final Agreements based on the Council for Yukon Indians Umbrella Final Agreement (1993) and corresponding Self-Government Agreements for:
7. The Vuntut Gwich'in First Nation (1995)
8. The First Nation of Nacho Nyak Dun (1995)
9. The Teslin Tlingit Council (1995)
10. The Champagne and Aishihik First Nations (1995)
11. The Little Salmon/Carmacks First Nation (1997)
12. The Selkirk First Nation (1997)
13. The Tr'ondëk Hwëch'in First Nation (1998)

Table 1 gives a comparative summary of these 13 settled comprehensive claims.

At least eight ongoing claims are expected to be settled within the next decade or so. The Nisga'a Final Agreement was signed by representatives of the Nisga'a Tribal Council, British Columbia and the Minister of Indian Affairs and Northern Development in 1999, and is currently awaiting ratification of the Nisga'a Final Agreement Act by the federal parliament. Table 2 summarizes the current status of claim negotiations.

Other ongoing comprehensive claims are in progress for the First Nations of British Columbia, whose land claims represent slightly more than half of the total number of claims currently being negotiated across the country (DIAND, 2000). These claims have overlaps and are the subject of hot debate among Aboriginal groups, non-Aboriginals and various levels of government. The BCTC was established in 1993 and received statutory recognition in 1995. Its purpose is to facilitate and monitor treaty negotiations and to allocate negotiation funding to BC Aboriginal groups (DIAND, 2000). To date, the BCTC has accepted 51 Statements of Intent to negotiate, which were submitted by 126 bands or over 70 percent of British Columbia (BC) First Nations. The submission of a Statement of Intent is Stage 1 of the six-stage BC treaty-making process (DIAND, 2000).

Other ongoing comprehensive claims in the rest of Canada accepted for negotiation include (DIAND, 2000):

• Algonquins of Eastern Ontario Land claim (Ontario)
• South Slave Métis Tribal Council (Northwest Territory)
• Salt River First Nation (Northwest Territory)
• Deh Cho First Nations (Northwest Territory)
• The Manitoba Dene Negotiations (north of 60°)

The Cree of Quebec's comprehensive claim - Cree of Quebec Offshore Islands Claim - for the offshore islands in James Bay and Hudson Bay was accepted by the federal government and preliminary discussions for entering into negotiations are taking place between Canada and the Cree.

Other claims that have been submitted and are currently awaiting acceptance or rejection by Canada include (DIAND, 2000):

• Quebec Algonquin claim (Quebec)
• Labrador Métis Nation (Newfoundland and Labrador)
• Naskapi of Quebec (Schefferville comprehensive land claim) (Newfoundland and Labrador)
• Miawpukek Mi'kamaway Mawi'omi (Conne River Mikmaq Band of Newfoundland) (Newfoundland and Labrador)

In eastern Canada, First Nations are preparing still further claims. The process of claims settlement is far from over in Canada.

TABLE 1

Comparative summary of 13 settled comprehensive claims agreements

Description of settled claim (and province)	Year of final agreement	Claimed area (km2)	Aboriginal population (January 2000)	Settlement areas and compensation benefits
James Bay and Northern Quebec Agreement (Quebec)	1975	over 1 165 286	- 12 103 Cree - 8 643 Inuit	- Ownership over 14 000 km2 of land and self-government - $135 million - Cree; $90 million - Inuit - Full hunting and trapping rights over 150 000 km2 - Participation in environmental and social protection regime - Income security for hunters and trappers
Northeastern Quebec Agreement (Quebec)	1978	over 1 165 286	- 660 Naskapi	- $9 million - Benefits as above
Inuvialuit Final Agreement (Northwest Territory [NWT])-	1984	435 000	- 2 500 Inuvialuit	- 91 000 km2 (including 13 000 km2 for mineral rights) - $45 million over 13 years - Guaranteed hunting and trapping rights - Participation in wildlife and environmental management - $17.5 million socio-economic funding initiatives
Gwich'in Agreement (Northwest Territory)	1992	57 000	- Approx. 2 300	- 16 264 km2 in NWT (incl. 4 299 km2 for mineral rights) - 1 554 km2 in Yukon - $75 million over 15 years - A share of resource royalties and guaranteed subsurface and hunting rights - Participation in land, wildlife and environmental management
Nunavut Land Claims Agreement (formerly part of Northwest Territory)	1993	1.9 million	- 19 000	- 350 000 km2 (37 000 km2 including mineral rights) - $1 170 million over 14 years - A share of resource royalties and guaranteed wildlife harvesting rights - Participation in land and environmental management
Sahtu Dene and Metis Agreement (Northwest Territory)	1994	280 278	- 2 400	- 41 437 km2 (1 813 km2 including mineral rights) - $75 million over 15 years - A share of resource royalties and guaranteed wildlife harvesting rights - Participation in land and environmental management
Council for Yukon Indians Umbrella Final Agreement (Yukon) for *: The Vuntut Gwich'in First Nation The First Nation of Nacho Nyak Dun The Teslin Tlingit Council The Champagne and Aishihik First Nations The Little Salmon/Carmacks First Nation The Selkirk First Nation The Tr'ondëk Hwëch'in First Nation	1993   1995 1995 1995 1995 1997 1997 1998	Whole of Yukon territory (approx. 487 500)	- Approx. 4 000 (of total of 8 000 for the 14 Yukon First Nations)	- 27 299 km2 (18 130 km2 including mineral rights) - total for all 14 YFNs is 41 595 km2, of which 25 900 km2 includes mines and minerals rights - $137 468 620 over 15 years - total for all 14 YFNs is $242 673 000 - Guaranteed fishing and wildlife harvesting rights - Participation in land and environmental management - Self-government

*There are 14 Yukon First Nations (YFNs) altogether, and negotiations with the remaining seven are almost complete.

Sources: DIAND (2000).

TABLE 2

Summary of ongoing comprehensive claims being negotiated

FURTHER OUTSTANDING ISSUES

This paper concludes by outlining a series of issues in Canada that the authors believe have an impact on Aboriginal or indigenous rights in other countries but that would require separate and fuller explanation. These issues include the following:

• The concept of Aboriginal title. Part of the ongoing debate in Canada over the settlement of land claims and the rights to resources is the definition of "Aboriginal title" based on traditional land use and occupancy of lands by a well-defined social group. The courts have established criteria for establishing rights under Aboriginal title and these may provide guidelines for other countries. The concept of Aboriginal title also challenges how property rights are defined in terms of three-dimensional space (e.g. the concept of a "parcel" of land and the rights of government versus the rights of individuals).
• The processes established to resolve land claims issues. This paper has outlined the general processes that Canada has put in place to resolve land claims issues. However, these processes are complex and involve, for example, procedures for establishing what evidence will be heard, how the evidence is gathered, and how overlapping claims between First Nation groups have been addressed. The key to these procedures is the widening of the acceptance of "traditional knowledge" as a valid form of evidence and the use of geographic information systems to document this evidence (Rakai and Nichols, 2000).
• Rights to resources and the offshore. The rights involved in land claims and under Aboriginal title frequently involve rights to use and harvest specific resources (e.g. timber, fish and minerals) and they have potential, at least in eastern Canada, to involve coastal and offshore areas. Reaching agreement between conventional non-Aboriginal and Aboriginal or First Nation peoples is a difficult, often emotional, and challenging process. Canada is just beginning to explore comanagement arrangements.
• Governance. How Canadians will govern their lands and natural resources has been challenged by the Aboriginal claims of the last 40 years. Much discussion has taken place over the concept of Aboriginal self-government but there are many interpretations of exactly what that would mean and whether First Nations themselves actually desire it fully (e.g. it may mean foregoing existing treaty and legislative rights such as exemption from certain taxes). Canada is just starting to come to terms with the need to reinvent governance structures.

As observed in the Coolican Report (INAC, 1985):

"Canada's wealth has been generated from the land and resources that Aboriginal groups agreed to share with the growing nation, yet Aboriginal peoples have had little opportunity to share in the benefits and have been caught in a legal and policy framework that has perpetuated a relationship of debilitating dependency."

The opportunity for Canada to make lasting agreements with Aboriginal peoples based on the recognition and affirmation of their Aboriginal rights and with respect for their unique and enduring place in Canadian society still exists. How Canadians will resolve the issues today and in the future will have a significant impact on global land issues simply because of the size of the territory involved. It will also hopefully set good precedents for resolving such issues equitably, reasonably and effectively in other countries.

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¹ Aboriginal peoples are defined by the Department of Indian Affairs and Northern Development Canada (DIAND) as being the descendants of the original inhabitants of North America. The Canadian Constitution recognizes three groups of Aboriginal people - Indians (or First Nations), Métis people (offspring of mixed Indian and Europeans, primarily in western and northern Canada) and Inuit (traditionally nomadic people of the Arctic regions). These are three separate peoples with unique heritages, languages, cultural practices and spiritual beliefs (DIAND, 2000). The term "Aboriginal" is used in this paper in accordance with common practice in Canada.

² The last major land granting in Canada, exclusive of the mineral rights in the North and offshore, occurred in the three western Prairie Provinces that were purchased from the British Hudson's Bay Company shortly after Canada became an independent nation in 1867.

³ "First Nations" is a term that came into common usage in Canada in the 1970s to replace the word "Indian", which many people found offensive. Although the term is widely used, no legal definition exists. Among its uses, the term "First Nation people" refers to the Indian people in Canada, both Status (defined by legislation) and Non-status (source: www.inac.gc.ca/pubs/information/info116.html#firstnat). Many Indian people have also adopted the term to replace the word "band" in the name of their community.

⁴ This theory has recently been challenged by another theory based on recent archaeological findings and on earlier geological findings, stating that Aboriginal peoples had already long inhabited Canada by the time the land bridge between Alaska and Siberia was created.

⁵ Indian is a term that describes all the Aboriginal people in Canada who are not Inuit or Métis. There are three legal definitions that apply to Indians in the country: Status Indians, Non-status Indians and Treaty Indians.

⁶ Descendants of the voyageurs and Indian women are the core of the Métis population today, largely found in western Canada. The Métis are also making land claims based primarily on the mismanagement of a system of land allocation applied to them in the late 1800s by the fledgling Canadian government.

⁷ Aboriginal title: legal term that recognizes Aboriginal interest in the land. It is based on their longstanding use and occupancy of the land as descendants of the original inhabitants of Canada (INAC, 2000).