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Treaty Land Entitlement in Canada

Treaty Land Entitlement in Canada refers to the First Nations who asserted that they did not receive all of the reserve lands promised to them by the Canadian government as agreed upon within the Numbered Treaties. The often substantial shortage in land is attributed to rough estimates in reserve size, miscalculated by the land surveyors and/or inadequate counts in the population size of band members recorded by the Indian Agent. In the early 1970's an overwhelming amount of land claims were advanced by the First Nations, particularly from the prairie regions, resulting in the creation of the Indian Claims Commission by the Canadian Government to address these claims. Today, the Specific Claims process and policy administers the treaty land entitlement claims whereby the Government of Canada is obligated to fulfil outstanding TLE issues through negotiated agreements with First Nations.

Background

As highlighted in the Numbered Treaties, the Government of Canada promised First Nations under treaties 1, 2 and 5 to 160 acres for a family of five. The remaining treaties (3, 4, 6, 7, 8, 9, 10 and 11) promised one square mile of land for each family of five. Claims for Treaty Land Entitlement (TLE) are generally categorized into two main types of claims; initial and shortfall claims. Initial claims address cases where First Nations who did not receive the reserve land legally entitled to them by treaty. Shortfall claims address cases where First Nations received partial, but not complete, sections of the land entitled to them under treaties.

The Calder v British Columbia case in 1973 was crucial to the creation and development of TLE in Canada because it affirmed legal recognition of aboriginal title and rights to land in Canadian courts. The decisions outlined in this case lead to the creation of a series of bodies specifically designed to address land claims such as the Office of Native Claims branch in the department of Indian and Northern Affairs, the Indian Specific Claims Commission, the Royal Commission on Aboriginal Peoples, and finally resulted in the ratification of Bill C-30: The Specific Claims Tribunal Act in 2008.

In response to the developing procedures for First Nations TLE in Canada, the Land Entitlement report was created by the Treaty Commissioner as a framework of recommendations related to TLE. This report included a proposal for a treaty entitlement equity formula to instigate formal discussion and governmental movement toward First Nations entitlement. The report was presented to the Minister of Indian Affairs and the Chief of the Federation of Saskatchewan Indian Nations in 1990. The TLE process was then advanced with the creation of the TLE Framework Agreement which was signed by 25 First Nations groups in Saskatchewan, the government of Saskatchewan and the federal government in 1992. The TLE Framework Agreement highlights the detailed terms and guidelines for how the promised entitlement to land, resources, and repairs would be carried out between the parties involved throughout a twelve-year timeline. From the procedures of the TLE Framework Agreement in Saskatchewan, similar TLE frameworks and agreements began to emerge such as the TLE Settlement Agreements in Manitoba from 1994 to 2009 and the TLE Framework Agreement in 1997.

A notable actor of TLE in Canada is the Assembly of First Nations (AFN) who played a significant role in the development of an independent specific claims reforms in Canada. In 2019, the AFN released the 2019 Specific Claims Reform document highlighting the historical details of this development beginning with the Penner Report in 1983 through to the creation of the Specific Claims Action Plan which resulted in the federal ratification of The Specific Claims Tribunal Act. From the creation of the Specific Claims Tribunal, there have have been several revisions and amendments to the Specific Claims Tribunal Act in relation to the procedures, regulations and funding of the specific claims process in Canada. These revisions are aimed at continuing the process of specific land claims reforms in Canada by focusing on research and recommendations for creating lasting funding sustainability and continuing policies.

Types of Treaties

Historic - numbered treaties, peace and friendship treaties Until the Royal Proclamation of 1763, the first of the historic treaties between the Crown and Indigenous peoples were for military alliances and for economic reasons. Later on, treaties were also used to ascertain land rights, regarding the usage of lands. This included the land rights of Indigenous people and European settlers. After the Royal Proclamation of 1763, treaties changed, and the treaties between Indigenous peoples and the Crown were used for the exchange of Indigenous land for compensations from the Crown, and other compensations, such as reserved lands. From 1701 to 1923, 70 treaties were signed, and these treaties are considered to be historic treaties. Because of the differences between the Crown and Indigenous peoples regarding historic treaty implementation, many actions have been taken to address these issues. One example is the Specific Claims process. This process handles any issues regarding land issues or other compensation issues. Other examples include independent treaty commissions. These commissions take efforts to advance discourse regarding the topic of historic treaties.

Modern - comprehensive land agreements Treaties signed after 1973 are considered to be modern treaties, which are also referred to as comprehensive land agreements. These treaties affect areas where historic treaties had not been signed. The negotiation and creation of modern treaties and the implementation of these treaties is currently an ongoing process. After the 1973 decision regarding the Calder v British Columbia case by the Canadian Supreme Court of Canada, the Comprehensive Land Claims Policy was created, which resulted in the signing of the James Bay and Northern Quebec Agreement in 1975, the first of 26 modern treaties. Self-government is also an aspect of several of these modern treaties. Other aspects, such as land ownership, or resource management are addressed in modern treaties.  Modern treaties and the implementation of modern treaties are the results of the continued discussion and cooperation between Indigenous groups and the provincial, territorial, and federal governments of Canada.

Exceptional Cases of Land Entitlement

Vancouver Land Transfer Deal

Negotiations between the Government of Canada and three First Nation groups resulted in the transfer of surplus Crown owned lands in British Columbia. Through the acquisition of these lands (outside of the British Columbia Treaty Process), these groups can further 'engage in economic development opportunities for their respective communities'

In 2009, National defence, Public works, and Fisheries & oceans had over 30 hectares in surplus Government property located in British Columbia. (Vancouver, West Vancouver) The three government sectors decided to approach their legal obligation to consult with First Nations groups, together – choosing to represent Canada. The Government contacted 17 First Nations groups, three of which responded; those groups are the: Musqueam, Squamish and Tsleil-Waututh. These groups identified the properties as part of their traditional territory.

The Jericho property, which is a National Defense property of 21 hectares located on the West side of Vancouver.  This Property was officially declared as surplus within the 1995 budget ; National Defense has used this land and will continue to do so until 2017. The surplus land owned by the Public Works Division is made up of 8 hectares of land in the Cambie Corridor- RCMP E Division Headquarters for British Columbia uses this land and will continue to until 2014. The third and final parcel of land was of the Fisheries and Oceans, which makes up two land hectares. Through negotiations, the total estimated value of these three properties was $307 Million.

Negotiations beginning June of 2010 and would not be officially signed off on with a ceremony till September 30th, 2014. Within initial discussions between First Nations groups and the Canadian Government began with an offer of 28% of the equity of the properties to participate in a business arrangement. Later, an additional 22% purchase from Canada Lands Company would bring them to a full 50% partnership with Canada Lands.

Chief Ian Cambell of the Squamish First Nation says, "The outcome of the settlement was seeing the three Nations come together, engaging in partnerships with CLC, Canada Lands Company to look at issues of reconciliation in action…" He then further reflects on the potential for long term value of this deal : "As we start phasing the developments, I'm very excited at the prospect of what can be built together on these parcels and the long-term value that will be created for the local economy but also to showcase this on what can be done by working together."

Saskatchewan's One Millionth Acre

There is an ongoing effort from the Government of Canada and the Province of Saskatchewan to work with Saskatchewan's First Nations to settle outstanding land claims. Land Claims settlements allow First Nations Peoples to begin establishing and operating a wide variety of businesses.

Fifty-one urban reserves have been created in Saskatchewan since 1992. From Pursuits of Land Claim Settlements, fifty three Saskatchewan First Nation reserves have experienced ATR (Additions to Reserve) With Treaty Land Entitlements and Specific Claims settlements, 2.4 million acres of reserve lands will be created in Saskatchewan. A million acres of land have been finalized to be included.

The Yellow Quill peoples are located outside of Saskatoon. With Land Claims, they were able to purchase many packages of land and add over 16,000 to their central reserve as agricultural land. Additionally, the Yellow Quill peoples also own land outside of Regina, which can become another reserve.

Cliff Tawpisin, Former Chief of the Muskeg Lake Cree Nation, reflects on the impact: "What Treaty Land Entitlement has done for our community, has given us the resources and the opportunity to develop the framework in our community that ensures the quality of life and opportunity for the future of Muskeg Lake."