Sometimes it is hard to keep track of the complexities, issues, rights and regulations of Aboriginal land in Canada, so the following are some useful condensed facts on title, treaties, land claims, impact benefit agreements and the duty to consult.
Title is the inherent Aboriginal right to land or territory based upon the ongoing occupation of the given land and/or traditional territory. R. v. Calder, R. v. Sparrow and R. v. Van der Peet cases specifically address the issue of Aboriginal title and rights.
Historic treaties were negotiated between First Nations and either the British Crown or the post-confederation Canadian government. These treaties addressed the use of land, its cession, and hunting, fishing, and trapping, among other things. In some cases treaties ceded land rights to the Europeans or settlers, but in other cases they remained with the First Nations Peoples.
Treaties of Peace and Friendship
These treaties we negotiated between the British Crown, the Mi’kmaq, the Maliseet and the Passamaquoddy between 1713 and 1763. There is no established land cession within Peace and Friendship treaties, which was confirmed in R. v. Marshall 1999.
These treaties were commissioned after the Royal Proclamation of 1763 on Vancouver Island. Title within these treaties was not settled and the legitimacy of these treaties has been contested.
These treaties, known as the Robinson-Huron Treaty and the Robinson-Superior Treaty, were made in 1850 and were land cession agreements made between the Crown and the Aboriginal Peoples of Lake Huron and Lake Superior.
These treaties were made between the Canadian government and First Nations post-confederation between 1871 and 1921. Eleven treaties were made and they span the provinces of Ontario, Manitoba, Saskatchewan, Alberta and the Yukon and Northwest Territories.. The commission of these treaties was partially due to increased economic development across Canada.
Land Claim Agreements and Modern Treaties
In the contemporary context, First Nations can peruse comprehensive or specific land claim agreements in order to achieve modern day treaties. Major agreements that have been made include the James Bay and Northern Quebec Agreement, the Nisga’a Final Agreement and the Nunavut Final Agreement (which went a step further than a land claim to develop into the Nunavut Territory). In addition to these land claims processes, British Columbia implemented a treaty process that allows BC First Nations to negotiate treaties, as BC is largely absent of historic treaties.
The British Crown first established reserves under the Royal Proclamation of 1763 in attempt to relieve conflict between the Aboriginal population and settlers. This concept was reintroduced in the Indian Act with increased assimilatory attachments. The title to reserve land remains with the Crown, however, its use is exclusive to Aboriginal Peoples.
Impact Benefit Agreements
These agreements are undertaken between a third party resource development companies (mining, hydroelectric, oil) and Aboriginal Peoples in order to establish shared benefits of a project. These are contractual agreements and usually address concerns of economic development, Aboriginal employment with the company and issues associated with the treaty rights of the given territory. These are not required by law but are considered good practice for companies to operate on Aboriginal lands.
Duty to Consult
There is no legal obligation for third parties to consult with Aboriginal Populations about potential development, however, various Supreme Court of Canada decisions have established that the Crown must consult and accommodate for such activities, especially concerning the impact of the project upon treaty rights.