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Draft: A Framework for Renewing Canada's Policies with Respect to Aboriginal and Treaty Rights

Part 1: Policy Context

The February 2, 2004, Speech from the Throne committed to see "Aboriginal Canadians participating fully in national life on the basis of historic rights and agreements - with greater economic self-reliance, a better quality of life."

At the Canada-Aboriginal Roundtable on April 19, 2004, the Prime Minister reiterated the Speech from the Throne commitment and stressed that finding more efficient ways of concluding self-government and land claims negotiations would give the parties (both government and Aboriginal groups) the opportunity to define their relationships, instead of leaving it to the courts. As a result, a sectoral follow-up table on expediting land claims and self-government negotiations was established. In follow-up to the Aboriginal Roundtable, on May 4, 2004, the Cabinet Committee of Aboriginal Affairs (CCAA) endorsed an Aboriginal framework that identified four themes for further policy work. The first of these themes focuses on transforming relationships. Expediting self-government and land claim agreements was included as a key component for transforming relationships.

The Speech from the Throne and the establishment of a sectoral table on land claims and self-government reflects the reality that establishing cooperative relationships with Aboriginal peoples on quality of life issues must be underpinned by effective policies and processes for addressing Aboriginal and treaty rights. For their part, at the Roundtable and in planning sessions for sectoral follow-up, Aboriginal groups emphasized that joint work on quality of life issues must be situated in the broader transformative agenda based on recognition and respect for Aboriginal and treaty rights.

Finding more efficient ways of concluding self-government and land claims agreements is linked to the larger issue of how Canada should address Aboriginal and treaty rights in a manner consistent with the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982 (s. 35). Since 1982, developments in constitutional law have generated a paradigm shift with respect to how Aboriginal and treaty rights operate within the Canadian constitutional framework. Just as the Charter of Rights and Freedoms has created a new dynamic between citizens, governments and the courts in shaping social policy, the adoption of s. 35 has created a new interface between policy and constitutional law as a vehicle for addressing Aboriginal and treaty rights.

The Supreme Court of Canada (SCC) has stated that the basic purpose of section 35 of the Constitution Act, 1982, is the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown. Reconciliation has become the key organizing principle which the Courts have used in addressing issues related to Aboriginal and treaty rights. Since 1982, some 40 SCC decisions have significantly changed and expanded our understandings of the nature and scope of Aboriginal and treaty rights, and government powers and obligations with respect to

those rights. This body of constitutional law provides significant guidance as to how reconciliation should be achieved in the Canadian constitutional context.

The concept of reconciliation was also adopted by the Royal Commission on Aboriginal Peoples. (RCAP) as the key theme for renewing relationships with Aboriginal peoples within the Canadian federation. It articulated the relationship principles of mutual recognition, mutual respect, mutual benefit (sharing), and mutual responsibility as the basis for renewed relationships with Aboriginal …

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… peoples. These relationship principles have been endorsed by most Aboriginal groups and have become central for much of the academic and public-policy dialogue on Aboriginal and treaty rights.

Evolving constitutional law and the changing public and economic environment is challenging governments and Aboriginal peoples to develop new approaches for addressing Aboriginal and treaty rights. There are increasing disconnects and gaps between government policies, jurisprudence and the expectations of Aboriginal people regarding how s. 35 rights, including self: government, should be recognized and reconciled with the sovereignty of the Crown and the rights of other Canadians. The result is increased litigation over Aboriginal and treaty rights and slow progress in land claims and self-government negotiation processes.

Pressure is mounting for Canada to realign and address gaps in its Aboriginal and treaty rights policies and processes in the following areas:

1. Comprehensive Land Claims

• There is need for a wider range of approaches for resolving conflict over Aboriginal land rights, based upon recognition and coexistence of rights rather than the surrender or final settlement of Aboriginal rights. Furthermore, there is significant pressure to address Metis assertions of Aboriginal rights within this policy.

2. Self-Government

• The implementation of the inherent right of self-government requires new approaches to address governance capacity, financial resources and more streamlined approaches for taking-up self-government powers. The Assembly of First Nations (AFN) has advocated replacement of the current Inherent Right Policy (IRE) with a process to implement First Nations Government based on a Draft specific recognition of their treaty and Aboriginal right of self-government. Also, when originally conceived, the federal position was that Metis could not hold Aboriginal rights, and thus, the policy does not allow for the negotiation of self-government powers for Metis; it only allows for program and service delivery type discussions.

3. Consultation and Accommodation

• In the very near future, SCC decisions in Haida and Taku are expected to provide new direction with respect to government duties to consult and take account of Aboriginal interests in areas subject to land claims. These decisions will require federal policy guidelines and processes to meet these obligations.

4. Metis Aboriginal rights

The 2003 SCC Powley decision has created a need to rethink federal policies that address Aboriginal rights, or assertions thereof, and to develop a policy framework for addressing Metis Aboriginal rights in keeping with those policies.

5. Historic Treaties

• -there is currently an absence of process to resolve differences over treaty interpretation and implementation. First Nations are also pressing to secrete access to economic benefits from their …


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… treaty areas. Metis assertions of Aboriginal rights overlap with the numbered treaty areas. Addressing the interests of one group will create significant pressures for equitable treatment:

6. Specific Claims

• The Specific Claims process addresses lawful obligations related to past administration of Indian lands and other assets under the Indian Act, as well as the fulfilment of certain treaty entitlements. A claims resolution centre is being established to expedite settlement of specific claims. However, the current Specific Claims Policy does not include the majority of claims related to historic treaties.

7. Litigation Management

• Federal litigation management with respect to Aboriginal and treaty rights is hampered by the lack of a coherent federal vision of how these rights should operate within the Canadian constitutional framework.

Policy renewal will need to be pursued in different forums through engagement with appropriate Aboriginal groups and/or Aboriginal governments, and provincial/territorial governments. Aboriginal groups across the country have very different views about how their rights and claims should be addressed, and on the form self-government should take. The concerns of First Nations, Inuit and Metis are significantly different. Provincial and territorial governments also have their own views with respect to the law regarding s. 35 rights, and they take significantly different positions on their roles and responsibilities for resolving land claims and accommodating self-government.

Canada does not currently have a coherent framework of guiding principles for engaging in renewal of its policies on Aboriginal and treaty rights. As noted above, the SCC has stated that the basic purpose of s. 35 is the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown. The concept of reconciliation, as reflected in the relationship principles set out in RCAP and informed by constitutional law, offers a potential organizing framework for policy renewal. Given the diverse historical, cultural and socio-economic circumstances of First Nations, Inuit and Metis peoples in different parts of the country, reconciliation will not be achieved through a "one-size-fits all" approach. While it should be guided by a coherent, principled policy framework, the process of reconciliation can take many forms, including treaties, legislative initiatives or program and service arrangements.

Aboriginal groups have been pro-active in articulating their understanding of reconciliation and SCC rulings. Since RCAP, Aboriginal groups have strongly advocated their views on how government should address the principles of recognition, respect, sharing and responsibilities identified by RCAP. The federal government's response to RCAP, Gathering Strength: Canada's Aboriginal Action Plan, sets out an action plan for renewing relationships based on those principles. However, in the intervening years, the Government of Canada has not engaged in any significant dialogue on the fundamental relationship principles. It has done little to articulate the government's view of the reciprocal expectations and obligations that these principles entail for Aboriginal peoples, or on its interpretation of emerging jurisprudence. Such a dialogue is needed to restore the mutuality embedded in these relationship principles, it they are to serve as a basis for achieving reconciliation.

The negotiation sectoral table provides an opportunity to seek some consensus on a framework of principles for addressing Aboriginal and treaty rights, and claims, based on the concept of…

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… reconciliation. Annex A sets out certain core principles which could serve as a basis for discussion. Such a dialogue could inform and set broad direction for more specific follow-up action with appropriate Aboriginal groups and provincial and territorial governments for expediting land claims and self-government negotiations in various parts of the country, as well as for addressing historic treaty rights and Metis Aboriginal rights.

A principled framework for reconciliation would suggest significant changes in Canada's policies for addressing Aboriginal and treaty rights. Annex B identifies potential areas and options for policy renewal that will require further internal assessment and possible external engagement.

Seeking consensus on guiding principles of reconciliation through the negotiation sectoral table would provide government with an early opportunity to:

1. Signal its commitment to renewing its relationships with Aboriginal peoples in a manner consistent with the constitutional purpose of the recognition and affirmation of Aboriginal and treaty rights in s. 35 (1) of the Constitution Act, 1982;

2. Demonstrate to the Courts that it has heard the SCC's directives;

3. Outline federal objectives and expectations for addressing Aboriginal and treaty rights, and provide clear constitutionally-based principles for explaining Canada's policies with respect to Aboriginal and treaty rights to the Canadian public; and

4. Provide a coherent organizing framework for federal engagement with appropriate Aboriginal groups and provincial/territorial governments in renewing policy approaches.

Part 2: Considerations

The Federal Government has two policies for addressing Aboriginal rights: the Comprehensive Land Claims Policy (adopted in 1973 and last revised in 1986), and the Inherent Right Policy, or The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (adopted in 1995). There are increasing disconnects between these policies, jurisprudence, and Aboriginal expectations. Moreover, there are gaps in federal policy for dealing with Metis Aboriginal rights, historic treaty rights, consultation and accommodation on Aboriginal land rights, and the management of Aboriginal rights litigation.

2.1 Comprehensive Land Claims

The Comprehensive Land Claims Policy was adopted to achieve certainty with respect to lands and resources in areas of Canada where Aboriginal rights were not resolved by treaty or other lawful means. The policy was designed to obtain a full and final settlement to all Aboriginal land rights, including Aboriginal title, through the negotiation of modem treaties (comprehensive land claims agreements) that exchange "undefined" Aboriginal rights for "defined" treaty rights. After the policy was first announced in 1973, research funding was provided to various groups, including certain Metis groups, to document their claims. However, in 1979, the Baker Lake decision handed down by the Federal Court specified that one element of the test for Aboriginal title was that the Aboriginal group was in existence at the time of contact with European society, thereby excluding …


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… Metis from meeting such a test. Since that time, the policy has only had application to First Nations and Inuit.

Since 1973, sixteen comprehensive land claim agreements have been negotiated and brought into effect. These modern treaties (mostly in northern Quebec and the three territories) cover

approximately 40% of Canada's land mass. They involve over 90 Aboriginal communities with over 70, 000 members, Under these agreements, the Aboriginal parties have secured ownership rights to over 600,000 square kilometres of land, over $2.4 billion in fiscal transfers, protections for their traditional way of life, access to benefits from future resource development and participation in land resource management decisions.

Comprehensive land claims are currently outstanding in approximately 20% of Canada (mostly in British Columbia, all of the Maritimes, much of Labrador, over a third of Quebec, the Ottawa Valley in Ontario, and continuing residual claims in all three territories). These remaining claims involve some 270 First Nations and Inuit communities with approximately 90 thousand members. Negotiations are currently proceeding in approximately 60 processes across the country. Over half of active negotiation tables are in British Columbia where negotiations are overseen by the tripartite British Columbia Treaty Commission.

The federal government's capacity to address these remaining claims will be very strongly influenced by provincial government policies and public attitudes. The claims settled in the past thirty years were primarily in northern and remote regions with limited third party interests and in the territories where the federal government controls the land and resources. The remaining claims are mainly in the provinces, often in populated areas with extensive third party interests and greater competition for access to land and resources. This creates a much more complex public environment for achieving settlement and necessitates a changing federal role.

At the same time, jurisprudence with respect to Aboriginal rights is creating pressure for new approaches to resolving Aboriginal land claims. Due to major SCC pronouncements since 1982, our understanding of Aboriginal rights has evolved from Aboriginal rights as an "undefined" burden on Crown title to substantive rights, that, in the case of Aboriginal title, are equivalent to ownership rights.(1) Since 1982, these rights cannot be unilaterally extinguished or infringed without justification. Justification includes consultation and protection of the Aboriginal right in a way that balances competing rights and interests. In the absence of a mutually acceptable negotiation process, Aboriginal groups are increasingly turning to the courts for the recognition of their rights or to ensure the protection of their rights during negotiations.

The courts, frustrated with the slow pace of negotiations, are increasing their role in overseeing negotiations, and in providing protection for Aboriginal interests during or even in the absence of a negotiation process. For example, in the recent lower court decision in Jules, the Crown was required to pay the Aboriginal party's legal costs for proving Aboriginal rights in advance and irrespective of the case's outcome. There is also a growing tendency of the Courts to recognize rights by dropping traditionally high thresholds of proof for Aboriginal rights.

A number of pending court decisions are expected to increase the pressure to find new approaches for settling claims to Aboriginal rights. Cases currently before the SCC are expected to confirm obligations on the federal and provincial Crown to consult (and possibly to accommodate) regarding potential Aboriginal rights in areas subject to claim ( Haida Nation, Taku River). In the upcoming Bernard and Marshall cases (relating to title claims in Nova Scotia and New Brunswick.), the SCC may clarify the …


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criteria required to demonstrate Aboriginal title. The Roger William case currently at the trial level in British Columbia may address whether provincial laws apply on land subject to Aboriginal title.

This evolving legal landscape means that the combined accessibility, flexibility and cost-effectiveness of the courts may encourage other Aboriginal groups to pursue litigation instead of negotiations to secure recognition of Aboriginal rights.

While there has been no formal review of the Comprehensive Land Claims Policy since 1986, a number of significant adjustments have been made in response to legal and political developments. Since 1995, self-government can be negotiated as part of a comprehensive land claims agreement. More recently, Canada has approved new approaches to certainty which do not require the surrender or extinguishment of Aboriginal rights.

While the federal policy continues to seek a "full and final" settlement of Aboriginal land rights, in 2002, Cabinet approved the concept of negotiating incremental treaty agreements which would provide interim certainty for land and resource matters pending the negotiation a larger treaty. Such agreements can build capacity and provide economic benefits in Aboriginal communities during the negotiation process.

Despite these adjustments in federal policy, the current comprehensive land claims policy does not adequately respond to the current legal and political environment for negotiations. It does not provide for the recognition of Aboriginal rights in advance of a final settlement or contain mechanisms for taking account of Aboriginal rights in advance of treaty settlement, nor does it accommodate Metis assertions of Aboriginal rights. A broader range of federal policy and legal risk management tools are required.

Increasingly, Aboriginal groups are taking the position that reconciliation should take the form of recognition of Aboriginal rights, with processes for consultation and accommodation, as well as justification and compensation where such rights would be affected by the activities of third parties or the Crown. Rather than a final settlement of rights, negotiations would be premised on the recognition and coexistence of rights with evolving agreements for sharing of management decisions and benefits from the development of lands and resources in areas subject to claim.

The process for negotiating comprehensive claims also requires reassessment. The pressure to achieve a final settlement of all rights creates a lengthy and costly negotiation process. On average, it has taken fifteen years to achieve a final agreement. Aboriginal parties finance their participation in negotiations through loans, which can absorb a significant portion of eventual settlement and thereby undermine community ratification. Given the different environment for settlement in the various territories and provinces, there has been limited success in templating agreements. Federal mandating processes, requiring Cabinet mandating at every stage of negotiation, are cumbersome. In most cases, separate federal legislation is required to give effect to each agreement. Where negotiations become deadlocked, there are no effective alternative

dispute resolution mechanisms. Processes for securing public understanding and support for modern treaty settlements have been inadequate.

2.2 Self-Government

As with comprehensive land claims, views on the nature of Aboriginal self-government and its place within Canada's constitutional framework have evolved dramatically since 1982. While existing …

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… Aboriginal and treaty rights were recognized and affirmed in the Constitution Act, 1982, no consensus was reached to specifically recognize self-government as a constitutional right.

Four constitutional conferences were held between 1983 and 1987 in an attempt to further define Aboriginal constitutional rights, but a definition of Aboriginal self-government eluded participants. The 1992 Charlottetown Accord included a constitutional amendment expressly recognizing the inherent right of self-government for Aboriginal peoples. When the Charlottetown Accord was not ratified, efforts to address self-government through constitutional reform came to a halt.

In 1993, the Government of Canada committed to recognize the inherent right of self-government and to implementing it without re-opening constitutional discussions. In August 1995, the federal government formally announced the Inherent Right Policy (IRP) which recognized an inherent right of self-government as an existing Aboriginal right that is protected under s. 35. With the IRP, the government explicitly sought to avoid legal debate over the definition of the inherent right, in favour of negotiated arrangements with Aboriginal peoples. Due to federal positions on Metis rights, the policy has had different application for Metis. While law-making powers cannot be negotiated and agreements cannot be constitutionally protected, a variety of self-government approaches to institutional development may be considered (the development of institutions providing services, forms of public government, potential for devolution of programs and service).

The RCAP's report in 1996 identified Aboriginal nation-building and self-government as key elements for a renewed relationship. RCAP also made a large number of Metis-specific recommendations in its final report that put the Metis on the same plane as the other two Aboriginal peoples mentioned in s.35, and urged the federal government to address the historic claims of Metis. The federal government's response to RCAP - the 1998 policy document Gathering Strength - broadened the IRP's initial focus on jurisdictional arrangements to place more emphasis on the broader capacity and fiscal issues that underlie the achievement of legitimate and sustainable Aboriginal governments for First Nations and Inuit, and kept on the same path of practical program and service arrangements for Metis.

At present, Canada is engaged in negotiations at 71 tables on either full or sectoral incremental self-government. These tables present 437 communities, including 414 First Nations, 25 Inuit communities some Metis locals (some communities are represented at more than one table). Of these tables, sectoral/incremental initiatives are underway with over 100 First Nations across Canada, focusing primarily on education and land management.

In addition to the above mentioned processes, the Office of the Federal Interlocutor currently manages ten tripartite negotiation processes with Metis and non-status Indian organizations at the provincial level across the country, mainly in British Columbia, Alberta, Saskatchewan and Manitoba. These tripartite processes are unique in their nature (in that they involve off-reserve groups) and have achieved positive results commensurate with a limited mandate. They considerably improved the governance capacity of Metis and non-status Indian (MNSI) political organizations, as well as their institutional and service delivery capacity, in areas such as child and family service, health, culture, employment, training and education. A good example of such self-governance institutions is the establishment of Metis child and family agencies and authorities delivering child and family services to Metis communities in Manitoba and British Columbia. The Louis Rid Institute and the Gabriel Dumont Institute are examples of Metis cultural, historical and educational institutions in Manitoba and Saskatchewan, respectively. The creation of Metis interpretive centres and museums serves the preservation of Metis history and culture.


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Approximately 50 First Nation and Inuit communities have approved final self-government agreements or agreements- in-principle associated with land claim agreements. The economic benefits of land claim agreements provide greater security and capacity for communities to make the transition to self-government. The Nisga'a treaty in 2000 established the first constitutionally protected self-government agreement. Combined land claim and self-government agreements with the Tlicho in the Northwest Territories and with the Labrador Inuit are awaiting federal implementing legislation. Nine of the 14 Yukon First Nations have self-government agreements linked to their land claim agreements, and three more agreements are pending ratification. In British Columbia, land claim and self-government agreements in principle have been concluded with four groups (involving eight First Nations) and final agreements are now pending. In the Northwest Territories six Inuvialuit and four Gwitch'in Dene and Metis communities and one Sahtu Dene and Metis community have all approved self-government agreements-in-principle to supplement their land claim agreements. Four Innu First Nations in Quebec have also signed an agreement-in-principle on self-government and land claims with Canada and Quebec.

Over 300 First Nations are involved in comprehensive or sectoral self-government negotiations which are not linked to land claim agreements. There has been substantial progress. The Westbank First Nation Self-Government Agreement was approved by Parliament in May 2004. Nine Mi'kmaq First Nations in Nova Scotia operate a sectoral education agreement, which was

approved in 1994. A final agreement with the United Anishnabek Council in Ontario (representing eight First Nations) is close to conclusion Agreements-in-principle have been signed with the seven Meadow Lake Tribal Council (MLTC) First Nations in Saskatchewan, and the Sioux Valley First Nation in Manitoba, and an agreement-in-principle on child and family services has been signed with the Blood Tribe in Alberta. A sectoral agreement on education has also been concluded with the 35 First Nations of the Anishnabe Nation in Ontario. However, these negotiations have tended to proceed at a slower pace, in large part because communities are concerned that they will not have adequate resources for the effective implementation of self- government.

While progress has been made, there are impediments to further progress:

1. Recognizing the Inherent Right: First Nations and Metis feel that the IRP is not sufficiently grounded in the recognition of an Aboriginal right of self-government. While Canada provided a general recognition that self-government is an existing Aboriginal right, policy currently precludes acknowledgement that any specific group possesses the right of self-government. Instead negotiations are predicated on setting aside the question of rights to focus on the negotiation of practical self-government arrangements or program service delivery.

2. Historic treaty issues: Treaty First Nations view self-government as an existing treaty right which should be addressed as part of a process of treaty implementation. They seek assurances that self-government will not diminish their treaty rights or federal treaty obligations in areas such as health and education. Given their limited reserve land base, they also seek access to resources and economic benefits from traditional territories covered by treaty to support implementation of self-government. Canada does not, however, acknowledge self-government as a treaty right, nor does it have mechanisms to address treaty implementation. Also, in many cases, Metis seek access benefits and co-- management of those same resources.

3. Challenges of aggregation: Most self-government negotiations are occurring with aggregations of First Nations who recognize that the establishment of new regional governance structures and institutions will be necessary to implement self-government. There are, however, significant …


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… political challenges in securing community Support for sharing power through new structures. Moreover there are significant challenges in identifying the human and financial resources for establishing and operating new regional or province-wide structures and institutions. At the other end of the spectrum there are a significant number of small First Nations (mostly in British Columbia) who are negotiating self-government on a wide range of powers some of which they could not exercise except in partnership with other First Nations or adjacent communities.

4. Fiscal sustainability: Aboriginal groups require incremental resources to assume increased responsibilities associated with self-government and to ensure that their citizens have access to programs and services comparable to other Canadians. The 1995 1RP did not identify any incremental resources for implementation of self-government and indicated that funding would be provided through internal reallocation with existing departmental budgets. Departments are unable to fund the incremental costs of self-government through internal reallocation. Initiatives are now proceeding within government to address the fiscal sustainability of self-government and identify necessary resources. Most communities have limited potential to generate significant own source revenues. On reserve there is resistance to generating revenue through taxation and concern that own source revenues would result in a decrease in existing levels of federal funding for programs and services.

5. Federal/provincial impediments: The IRP does not permit negotiation of jurisdictions normally under provincial jurisdiction without provincial participation. This means that jurisdictions such as child and family services, social assistance, or administration of justice are not negotiable unless provincial governments come to the table. While most provinces are participating in negotiations, they are concerned that their participation could result in additional costs and First Nations are reluctant to give provinces control over aspects of self-government negotiations. As mentioned above, there have been some successes at the Metis tables, most notably in Manitoba and British Columbia on this front, likely due to a willingness of provinces to participate because the negotiations are on a non-rights basis, dealing with practical issues (no law-making powers).

6. Policy/Process impediments: There are a number of subject areas where Aboriginal parties are strongly opposed to federal positions. This includes the requirement that Canada retain control over Indian status. Moreover, the AFN is seeking changes to the negotiations process, such as the establishment of a tribunal to provide a recourse for negotiation issues. There is no standard template for self-government agreements. Each agreement requires separate federal legislation. This results in protracted negotiations over description of jurisdictions, limitations, and priority of laws and other issues. The variations in description of lawmaking powers and financial arrangements may create difficulty in harmonizing future intergovernmental relations ant in coordination among First Nations operating under different agreements. This is not an issue at the moment for Metis because the IRP does not allow for lawmaking powers. As Metis continue to assert Aboriginal rights, both in the courts and politically, expectations and pressures for negotiation of law-making powers may increase.

7. Implementation issues: Self-government agreements establish the framework for ongoing "government-to-government" relationships. New mechanisms will be required within the Canadian federation to manage these intergovernmental and fiscal relationships and to ensure that First Nation and Inuit enjoy comparable access to program and services consistent with the …

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…principles of the social union Framework Agreement. As these mechanisms are developed, it will be important to take Metis interests into account as well.

In addition to the negotiation of comprehensive or sectoral self-government agreements, the transition to self-government is also being advanced through a continuum of other initiatives which support First Nations in building governance capacity and moving out from under restrictive provisions of the Indian Act to assume greater control of reserve lands and band assets. These initiatives include the 1996 First Nations Land Management Act, which provides participating First Nations with jurisdiction over management of reserve lands. 12 First Nations are currently operating under this act and another 50 First Nations have signalled their desire to participate. Proposed optional legislation for a First Nations Oil and Gas and Money Management Act is being supported by number of First Nations. The proposed legislation on First Nations fiscal institutions is also being supported by number of First Nations to improve their capacity for revenue generation and fiscal management.

2.3 Consultation and Accommodation (2)

Government has consulted with Aboriginal people as a matter of policy when engaging in or approving initiatives which could affect Aboriginal rights or claims or treaty rights. However, since the enactment of s. 35, there has been increasing recognition of legal duties on the Crown with respect to consultation. Due to the pre-Powlev federal position on Metis Aboriginal rights, the government has not seen a duty to consult with Metis. As a result, any consultations with Metis groups have been ad hoc, done as a matter of good business practice, and entirely dependent on the department conducting the consultation process.

In the context of established or proven Aboriginal rights, the SCC has stated that these rights can be infringed only subject to high standards of justification. Evidence of consultation, a balancing of Aboriginal and non-Aboriginal interests and efforts to minimally impair Aboriginal rights are factors to be considered in assessing whether the Crown's actions or decisions meet those standards of justification.

Recent decisions by the British Columbia Court of Appeal in Taku and Haida have expanded Crown obligations to consult and accommodate. These decisions impose obligations of consultation and accommodation on both the Crown and industry in dealing with resource management decisions in areas subject to Aboriginal claims, where Aboriginal rights have yet to be established or proven. These decisions were reviewed by the SCC in March 2004 and a final decision is anticipated shortly. It is expected that, in determining the scope of government obligations to consult and accommodate Aboriginal rights, the SCC will find that there are legal duties with respect to asserted, as well as established, Aboriginal rights.

There are an increasing number of court cases across Canada alleging federal breach of duty to consult and accommodate when making land resource management decisions, including: applications for injunction; applications for judicial review: and claims of unjustified infringement of Aboriginal rights. This is creating increased uncertainty for government and industry in proceeding with resource development. The result is increased pressure to find ways to accelerate claims settlements and to establish interim mechanisms to satisfy consultation and accommodation requirements.

Currently, Canada does not have a government-wide consultation policy or process. Fulfilling Canada’s legal duties with regard to consultation and addressing continuing uncertainties will require development of guidelines for federal departments, and enhanced expertise and capacity for the conduct…

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…of consultation. In keeping with the consultations practices for First Nations and for Inuit, there will need to be a more consistent approach to consultations with Metis by the federal government. It will also require enhanced processes for identification of Aboriginal parties to be consulted; funding for Aboriginal participation in consultation; mutually accepted consultation procedures; and potential mechanisms and funding to address accommodation and minimal impairment of Aboriginal or treaty rights. Certain federal departments are beginning to negotiate co- management mechanisms and a consultation process for resource allocation with Aboriginal groups claiming Aboriginal rights (for example: the Department of Fisheries and Oceans Aboriginal fishery strategy; Parks Canada and Wood Buffalo National Park; and fishery discussions with the Haida Nation in British Columbia).

Provincial governments and industry are also examining mechanisms to fulfill potential consultation obligations. British Columbia (B.C) is currently negotiating forestry accommodation agreements with First Nations. These are expressly intended to fulfill obligations to consult, and accommodate claims to Aboriginal rights. Nonetheless, the Business Council of British Columbia has identified that industry is experiencing major difficulties in consulting with First Nations in B.C. Other provinces are facing similar pressures with respect to accommodating Aboriginal rights. For example, Alberta, Manitoba and Ontario are currently negotiating harvesting accommodations with Metis.

In the context of modem land claim negotiations, expanded legal duties to consult and accommodate might result in a significant incentive for Aboriginal groups to choose litigation over negotiation. It would create pressure for enhanced tools and mechanisms to address claimed Aboriginal rights during the negotiation process. This would require consideration of more robust interim measures arrangements with regard to consultation, options for withdrawal of areas from development, early implementation of co-management mechanisms and potential benefit-sharing from development activities that proceed in advance of a final claims settlement.

2.4 Metis Aboriginal Rights

Metis, the third of the Aboriginal peoples mentioned in s. 35 of the Constitution Act, 1982 present complex legal, cultural and political dimensions, which must be reflected in policy development. Neither the Constitution Act, 1982, nor any federal legislation defines the term "Metis" and the courts have provided limited guidance on the question. The Charlottetown Constitutional Accord included a Canada Clause that, among other things, would have put Metis on a level playing field with Indian and Inuit people (constitutional amendment confirming that s.91(24) applies to "all the aboriginal peoples of Canada" - including the Metis, recognition of their inherent right of self-government, and a commitment to negotiate lands and resources in Ontario-west, and in the Northwest Territories).

Strong political signals to the Metis that they have a standing within the Canadian federation, as more than that of a mere group of provincial residents have helped to raise their expectations, the net result has been to encourage Metis to put forward their rights agenda in the political arena as well as in the courts. In recent years Metis political organizations have developed a relatively coherent and focussed national litigation strategy, of which the Powley decision is the beginning.

On Friday, September 19, 2003 the SCC rendered decisions in two landmark Metis cases, Powley and Blais. In Powley, the SC C found that the Metis community in and around Sault Ste, Marie, Ontario, have an Aboriginal right to hunt for food under s. 35 of the Constitution Act, 1982. While the decision is site and fact specific, its importance should not be underestimated. It is the first SCC decision to recognize Metis as a "full- fledged, rights-bearing people."

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The SCC also provided guidance around the question of (1) who is a Metis for the purposes of s. 35 and (2) the test for identifying Metis rights-holding communities. The Court stated that the following criteria must be satisfied in determining who a Metis person is for the purposes of s.35: a) long, standing self-identification; b) an ancestral connection to the historic Metis community (the court noted that this does not require proof of a minimum blood quantum); and c) community acceptance. In addition, the SCC modified the test for Aboriginal rights in the context of Metis claims. Metis communities must demonstrate that their customs and traditions were important features of their community prior to the time of effective European control and that they persist in the present day. In support of their claim to site specific Aboriginal rights, Metis communities must demonstrate proof of shared customs and traditions and a collective identity.

In Blais, the Court found that Metis are not included within the term "Indians" in paragraph 13 of the Natural Resources Transfer Agreement (NRTA). The Department of Justice (D0.1) has advised that the SCC's reasoning indicates that it is strongly supportive of the traditional federal position that the Metis are not "Indians" within s. 91(24).

An interim strategy to respond to the Powley decision has already been approved by Cabinet and work is underway, both internally and in conjunction with Metis and provincial partners, to develop a federal response centred on a manageable fall harvesting season (clarifying identification of Metis for Aboriginal harvesting policies) and conducting research (assessing scope of Metis rights, assessing federal vulnerability, determining Metis harvesting practices and the impact on natural resources). Funding is being provided to Metis organizations to participate in discussions and to conduct research to identify their membership and communities (working towards developing objectively verifiable membership lists). Internally, the Department of Justice is undertaking historical work on selected geographic areas across Canada to study the possible existence of historic mixed Indian-European ancestry or Inuit-European ancestry communities. This research work will be followed up with legal analysis with a view to determining, on a preliminary basis, areas in the country where there might be Aboriginal rights bearing Metis communities.

In the short term, there will be some urgency to developing a federal response with respect to Metis harvesting, particularly as the fall harvesting season draws nearer. While the Metis reaction to Powley when it was handed down in September, 2003, was relatively controlled, delays in implementing a federal response will risk growing impatience among the Metis, and consequent increased unilateral assertions of rights 'on-the-ground.' The development of an Interim Federal Approach to Metis Harvesting for federal enforcement officers and resource departments is underway.

Metis organizations, and the Metis National Council (MNC) in particular, are also seeking a forum to address their long-standing grievances with the federal government. Unlike First Nations and Inuit, Metis groups have not been granted access to the Comprehensive Land Claims Policy, and do not have access to most of the socio-economic programs provided by the Department of Indian and Northern Affairs to status Indians. There are currently several major trial-level court cases that challenge traditional federal positions with respect to Metis, including challenges.

• to the federal position that Metis fall outside the scope of s. 91 (24);

• seeking Metis access to policies and programs for Indians and Inuit on the basis of s.15; and

• seeking to expand the scope of Metis Aboriginal rights beyond harvesting.

At the April, 2004, Canada-Aboriginal Roundtable, the MNC tabled a draft framework agreement. Through the proposed framework, the MNC seeks to engage with the Government of Canada on issues…


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… including exploring options to resolve Metis legal issues (Aboriginal rights, title, and jurisdiction); Metis ownership and/Or access to lands and resources; and Metis inclusion and participation in new and existing federal policies, programs and services. If Metis expectations

are not met through policy changes it is likely that they will continue to seek to address issues through litigation.

2.5 Historic Treaty Rights

Historic treaties is a term used to refer to those treaties concluded between the Crown and Aboriginal peoples up until 1923. From the beginning of European settlement, treaties of peace and friendship and other treaties established political relationships, military alliances and regulated commerce and land issues between colonizing powers and the Aboriginal peoples of what is now Canada.

In 1763, the British Crown issued a Royal Proclamation that provided that only the Crown could enter into arrangements with Aboriginal peoples regarding land rights. Subsequently, treaties became the standard mechanism by which the Crown addressed Aboriginal land rights to facilitate settlement. Following the creation of Canada, the federal government assumed responsibility for Indians, lands reserved for Indians, and the prerogative of treaty making. From 1867 to 1923, the Canadian government negotiated treaties covering most of Ontario, the Prairies, and parts of the Northwest Territories and British Columbia. The process of treaty making stopped in 1923, and was not renewed until the establishment of the comprehensive land claims policy in 1973 (however, adhesions to the existing treaties continued until the 1950s).

There are approximately 70 recognized historic treaties. These treaties involve 369 First Nations. They are not uniform in nature and reflect the times and circumstances in which they were negotiated and the differing objectives of the parties. Treaty First Nations view these treaties as foundational agreements for contemporary relationships between themselves and the Crown. For non Aboriginal Canadians, treaties have often been seen as historic agreements overtaken by subsequent events, or as a final settlement of Aboriginal rights setting out specific rights and obligations.

The recognition and affirmation of existing treaty rights in the s. 35 of the Constitution Act, 1982, and subsequent jurisprudence respecting the interpretation of treaty rights has called upon Canada to reassess both its views on, and interpretations of, treaties. This has involved consideration not only of specific obligations and rights, but also of the relationships established by treaties. A complicating factor to these relationships is the overlay of Metis assertions of Aboriginal rights and how the Crown might address them.

In order to provide an outlet for the pressures in the Crown- Treaty First Nation (TFN) treaty relationship, Canada has created four Exploratory Treaty Discussion Tables (ETTs) with TFNs. Tables are established with the Federation of Saskatchewan Indian Nations (FSIN), Treaties 6 and 8 First Nations in Alberta, and with the Nishnabe Aski Nation in northern Ontario. Discussions are non-rights based. They seek to identify TFN and Crown understandings of treaties and how the parties should proceed in the future on key treaty issues. Canada has also jointly created a Treaty Commission in Saskatchewan with FSIN. Commissions have mandates to facilitate exploratory treaty discussions, to provide public education concerning treaties, and to

conduct independent research. In 2003 a Cabinet Aide-Memoire authorized creation of new commissions in Manitoba and Alberta, Both are in the process of being established.

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Secret

Canada provides research in support of ETTs and policy development initiatives; conducts and supports public and professional education activities; and supports treaty commemoration celebrations (e.g. centennials of Treaty 8 in 1999, and of Treaty 9 in 2005).

TFNs have a much more expansive view of treaty rights than Canada does, holding that s,35 is testament to the necessity to recognize the treaty-based relationship in Canada. The Government of Canada, on the other hand, holds that the specific terms of treaties, such as hunting and fishing rights, have been honoured, and that less specific provisions, such as health and education, are addressed through social policy.

These divergent views are often the foundation for TFN-initiated litigation. Since 1982, s.35 court decisions have resulted in court-driven treaty public policy. Canada, however, has not responded with proactive policy responses. Since 1999, attempts to introduce change to federal historic treaty policy to enable the department to deal with treaties more substantively, have not succeeded. This is due in part to a perceived fiscal and legal risk. Canada now finds itself in a policy vacuum.

While ETTs have enjoyed some success in exploring treaty issues, their mandates do not enable them to negotiate agreements or address grievances. Because of these limitations, and the increasing pressure surrounding historic treaty issues, ETTs are no longer considered sufficient with their current mandates to adequately address TFNs' grievances, thus leading to mounting pressure and frustration for all parties.

The single largest internal pressure for policy change can be attributed to the lack of a consistent and comprehensive government-wide approach to treaty rights and interpretation. Current self-government and land claims policies do not include the tools necessary to address unresolved treaty issues. Both the Specific Claims process and ETTs are intended to address certain pressures in the treaty relationship. However, specific claims are circumstantially specific and are limited to specific types of lawful obligations. ETTs are only mandated as fora for discussion, thus precluding the potential for these processes to address historic treaties more holistically or substantively. This lack of capacity contributes to both the multitude of historic treaty issues which need to be addressed, and prevents the federal government from doing so.

For their part, TFNs want to have their treaties implemented, but have not provided a consistent definition of implementation or proposed a balanced process to achieve this end. ETTs and commissions, as currently mandated, are incapable of dealing with treaty implementation or advocacy to the extent TFNs fully desire. TFNs have been patient to date, however, mounting frustration can be seen through increases in treaty-related litigation and breakdowns in negotiation processes. The amount of treaty-related litigation has increased steadily since 1990. There are approximately 300 cases before the courts involving treaties, around 10 of which are

active. Given the extent and significance of litigation, courts will continue to render decisions which may limit the Crown's policy options and which may prescribe particular policy directions.

The SCC decision in Marshall, which recognized treaty and commercial fishing rights for First Nations in the Maritimes based upon historic treaties of peace and friendship, required an emergency response and a major financial investment by government in interim fisheries agreements. It is now leading to processes in three Maritime provinces and the Gaspe in Quebec to address both the implementation of historic treaty rights and unresolved Aboriginal rights. Combined historic treaty and Aboriginal claims …


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… are also being negotiated with the Douglas treaty First Nations in British Columbia and with Treaty 8 and 11 First Nations in the Northwest Territories.

Some self-government negotiations have stalled due to Canada's inability to address historic treaty issues, such as those with the Meadow Lake Tribal Council (MLTC) and the FSIN. Furthermore, a perceived imbalance has developed between First Nations with historic treaties versus those with modern claims or self-government agreements. Historic Treaty groups perceive that they are severely disadvantaged by comparison. As such, there have been increasing efforts to explore the connection between historic treaties and self-government and/or claims negotiations, as TFNs have exerted pressure on negotiators to open up issues related to historic treaties for discussion. The IRP does not permit negotiators to address any interests of the Aboriginal party with respect to historic treaties, and there are no alternative processes. Unless impasses like those experienced with MLTC and FSIN can be resolved, progress toward achieving these self-government agreements will not be reached.

2.6 Specific Claims

The Specific Claims and Treaty Land Entitlement process addresses lawful obligations related to past administration of Indian lands and other assets under the Indian Act, as well as the non-fulfilment of certain treaty entitlements. However, the current Specific Claims Policy addresses only a very limited range of claims related to the fulfilment of historic treaties. A claims resolution centre is being established to expedite settlement of specific claims. The new Specific Claims Resolution Act (SCRA) establishes a legal, rather than a purely policy, basis for the resolution of specific claims. The SCRA establishes a third party, the Canadian Centre for the Independent Resolution of First Nations Specific Claims, to monitor and report on the fulfilment of mutual responsibilities within the specific claims negotiations process and a tribunal to adjudicate claims. If successful, the processes established pursuant to the SCRA could potentially be expanded to address other types of claims.

Part 3: Analysis

3.1 Introduction

Fulfilling the promise of the Speech from the Throne - to have Aboriginal Canadians participate fully in national life on the basis of historic rights and agreements - will require a significant investment in renewing existing federal policies and processes for negotiating comprehensive land claims and implementing self-government. It will also require initiatives to establish new policies and processes for addressing the implementation of historic treaties and Metis Aboriginal rights, or find ways of accommodating Metis within existing policies.

Aboriginal groups across the country have very different views and demands regarding how their rights and claims should be addressed, and the form that self-government should take. The concerns of First Nations, Inuit and Metis are significantly different, and raise different legal and policy issues. For the most part, the Inuit have completed land claims and have made significant progress in addressing self-government, either through public government as in Nunavut, or in agreements linked to land claims. First Nations, depending on their geographic location, have signed historic or modern treaties, are in the process of negotiating a modern treaty, or are seeking alternative venues to implement their Aboriginal rights. With the exception of some northern Metis groups, Metis do not have treaties and are currently seeking to have their Aboriginal rights addressed by both federal and provincial levels of government.


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Provincial and territorial governments also have differing views on their roles and responsibilities for resolving claims, implementing treaties and accommodating Aboriginal self-government. Policy renewal will, therefore, need to occur incrementally, and in different forums, through engagement with appropriate Aboriginal groups and provincial/territorial governments.

Currently, Canada does not have a coherent organizing framework for addressing the Aboriginal and treaty rights of all Aboriginal peoples in a manner consistent with the recognition and affirmation of those rights in s. 35. The identification of a guiding framework of principles, and seeking consensus with Aboriginal partners on those principles, would constitute an important first step in setting the stage for follow-up with appropriate Aboriginal groups and provincial/ territorial governments in establishing more effective processes for addressing Aboriginal and treaty rights. It would also provide an opportunity for Canada to signal, within the context of open dialogue, its understanding of the mutual obligations that reconciliation requires from both government and Aboriginal groups.

3.2 Paradigm shift in approaches for addressing s. 35 rights

The recognition and affirmation of Aboriginal and treaty rights in the Constitution Act, 1982, has resulted in a paradigm shift in the relationship between policy and law as vehicles for addressing Aboriginal and treaty rights. Just as the Charter of Rights and Freedoms has created a new dynamic between citizens, governments and the courts with respect to individual rights in

Canada, s. 35 has created a new dynamic between government, the courts and Aboriginal peoples with respect to treaty and Aboriginal rights.

This paradigm shift was described by the SCC in the 1990 Sparrow decision in the following terms:

• "... while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the crown...."3

• "Over the years the rights of the Indians were often honoured in the breach….. for many years the rights of the Indians to their aboriginal lands - certainly as legal rights - were virtually ignored...."4

• "By the late 1960s, aboriginal claims were not even recognized by the federal government as having any legal status. Thus the Statement of the Government of Canada on Indian Policy (1969),.... contained the assertion that "aboriginal claims to land…. are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community.”5

• “It took a number of Judicial decisions and notably the Calder case to prompt a reassessment of the position taken by government,"6 In 1973, the federal government issued a policy statement that indicated that Canada "is now ready to negotiate with the authorized representatives of native peoples on the basis that where their traditional interest in lands concerned can be established, an agreed form of compensation or benefits will be provided native peoples in return for their interest."7 It was obvious however that the policy approach had "constituted an expression of policy rather than a legal position…. [as] as recently as the Guerin v the Queen [1984], the federal government argued in this court that any federal obligation [to negotiate] was of a politica1 character."8


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• "Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereignty claims made by the Crown."9 Moreover, "section 35 provides a solid constitutional base upon which subsequent negotiations can take place and affords aboriginal peoples constitutional protection"10 against legislative powers of the Crown. The duty of the judiciary is "to ensure that the constitutional law prevails."11

In summary, s. 35 created a new dynamic interplay between policy and constitutional law as vehicles for addressing Aboriginal rights. The SCC has encouraged negotiations as the best means for achieving reconciliation between the Crown and Aboriginal peoples. However, it has also indicated that these negotiations will be informed by judgments of the court and that the

contours of Aboriginal rights will be clarified both through court decisions and negptiations.I2 In other words, both negotiations and litigation have a role in achieving reconciliation.

Federal policy on the other hand has tried to maintain a separation between policy and the law and an "either/or" approach between negotiations and litigation. The Government of Canada continues to maintain that negotiations are policy, rather than rights, based. Federal policy approaches to both comprehensive land claims and self-government do not provide for specific recognition that the Aboriginal parties come to the table with Aboriginal rights. In the case of comprehensive land claims, negotiations set aside the recognition of rights in favour of negotiating a final settlement of rights. The policy has no means for recognizing rights in advance of a final treaty settlement and few mechanisms for dealing with, or managing, the existence of such rights in advance of a final settlement. Aboriginal groups seeking recognition for the protection for Aboriginal rights in advance of a final settlement are forced to the courts. Where groups resort to the courts for recognition or protection of rights, negotiations are suspended.

In the case of the IRP, Canada has recognized the inherent right of self-government as an existing Aboriginal right, but the policy precludes specific recognition that any group in negotiations possesses an inherent right of self-government. Instead, the policy is premised on setting aside debate over the recognition and legal scope of the right to negotiate practical arrangements for the exercise of self-government. Aboriginal groups seek specific recognition that they come to the negotiations table with rights. Many groups refused to participate in negotiations which are based on Federal policy rather than on an explicit recognition of rights.

In the area of comprehensive land claims and Aboriginal land rights, SCC decisions over the past 20 years have significantly shifted the political landscape for negotiations. Prior to 1982, in the absence of a negotiated comprehensive land claims agreement, federal and provincial governments continued to operate much as if no Aboriginal rights existed. As a matter of policy, certain interim measures or protections were put in place to minimize conflict during the negotiation process, but, in general, governments continued to approve applications for development of lands and resources subject to claim. Since 1982, Court decisions have established new ground rules for addressing Aboriginal and treaty rights, precluding unilateral extinguishment, requiring justification for infringement and evidence of consultation and accommodation if rights are affected. More recent court decisions are creating obligations to consult on possible infringement of rights in areas subject to claims. For federal and provincial governments, the best alternative to a negotiated agreement has significantly changed. Governments must comply with a new legal framework for addressing Aboriginal rights in the absence of treaty settlements. This framework is still evolving and is causing considerable uncertainty for the Crown and third-parties. These court decisions have also provided Aboriginal parties with a new …


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….alternative to a negotiated agreement as a means for protecting, and asserting their rights. It also suggests new approaches to settlement based on recognition and accommodation of rights rather than on final settlement of rights.

The courts have yet to provide significant judgments with respect to recognition and existence and scope of the inherent right of self-government. With respect to Metis rights, the Powley decision was the first major acknowledgment of s. 35 rights. With respect to historic treaties, court cases have established some significant ground rules with respect to the interpretation of treaty rights and the obligations of the Crown in relation to treaty rights. A large body of pending court cases of historic treaties is also looming. In these areas, the experience of comprehensive land claims and related litigation and the general principles enunciated by the Supreme Court with respect to the purpose of 35, suggests that approaches premised on setting aside recognition of Aboriginal and treaty rights in favour of initiatives based on federal policy alone will not stand the test of time.

A separation between federal Aboriginal policy and constitutional law cannot be sustained. Just as social policy for all Canadians must be grounded in respect for Charter rights, social policy for Aboriginal peoples must be grounded in respect for section 35 rights. Government must deal with the reality of Aboriginal and treaty rights not only as a matter of social and economic policy, but also as a matter of constitutional law.

The impact of the constitutional recognition of Aboriginal and treaty rights, and subsequent court judgments, calls on the federal government to develop policy approaches that can better manage the dynamic interface between the law and policy as the basis for reconciliation. This paradigm shift calls for policy approaches grounded in the recognition of rights and informed by principles of constitutional law. Moreover, it calls for the articulation of overarching principles reflecting Canadian values of constitutional federalism, cultural pluralism, and shared citizenship to provide a consistent framework for dealing with both negotiations and litigation as vehicles for promoting reconciliation within the Canadian constitutional framework.

3.3: Reconciliation as an organizing framework for addressing Aboriginal and Treaty rights

The starting point for any organizing framework for addressing Aboriginal and treaty rights is in the recognition of existing Aboriginal and treaty rights in s. 35 (1) of the Constitution Act 1982.

The SCC has stated that the basic purpose of s. 35 of the Constitution Act, 1982, is the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown:

• "s. 35 (1) provides the constitutional framework through which aboriginal peoples, who lived on the land in distinctive societies with their own practices, traditions and cultures, are acknowledged and reconciled with the sovereignty of the Crown." (Van der Peet, 1996)

• "The inclusion of the Metis in s. 35 is based on a commitment to recognizing the Metis and enhancing their survival as distinctive communities. The purpose and promise, of s. 35 with

respect to Metis Aboriginal rights is to protect practices that are historically important features of distinctive communities and that persist in the present day as integral elements of Metis culture.” (Powley, 2003)

The concept of reconciliation represents a cornerstone for establishing an organizing framework for renewing Canada's policy approaches for addressing Aboriginal and treaty rights. Since 1982, a….


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….significant body of constitutional law has emerged that provides guidance on how reconciliation should operate in the Canadian constitutional context. Over 40 SCC cases and a variety of other court decisions have articulated key principles with respect to the exercise and interpretation of Aboriginal and treaty rights and Crown duties in dealing with those rights.

Jurisprudence has been accompanied by the emergence of a significant body of public policy literature on the concept of reconciliation. This includes the work of RCAP, and papers prepared by Aboriginal groups, academics, various public interest groups and policy think tanks and institutes, Given the vastly different circumstances of Aboriginal peoples throughout Canada, it is recognized that reconciliation may take different forms - a "one-size-fits-all" approach isn't practical for addressing the Aboriginal treaty rights of different groups in different parts of the country. Nonetheless, both the jurisprudence and public policy literature show common ground and a convergence of views on certain key themes and principles that must characterize the process of reconciliation.

Annex A sets out a number of key principles for reconciliation, which could be used as a basis for discussion at the sectoral table on expediting negotiations with a view to generating consensus on a framework of principles for addressing Aboriginal and treaty rights. They include the principles of mutual recognition, mutual respect, mutual benefit and mutual responsibility, which are grounded in the work of RCAP. Combined with the directions provided by the SCC, they provide the basis for articulating a principled federal approach for engaging with Aboriginal groups and provincial/ territorial governments to ensure that Aboriginal Canadians can participate fully in national life, on the basis of historic rights and agreements.

Part 4: Performance Information

4.1: General

The Government of Canada expends approximately $120 million a year on the negotiation of land claim and self-government agreements for First Nations and Inuit. Approximately $60 million of this consists of contributions to support Aboriginal participation in negotiations. The other $60 million constitutes salary and operational costs for federal participation in negotiations. A further $10 million a year is spent on treaty commissions and other activities related to developing common understandings with respect to historic treaties. With respect to Metis and

non-status Indians. $2.9 million is expended annually to support their capacity to participate in the tripartite negotiation processes, with matching efforts from the provinces.

In the case of comprehensive land claims negotiations, Aboriginal participation is financed through loans which constitute an advance against final settlement. Approximately $70 million a year is provided to Aboriginal groups in the form of loans. At present, the total value of outstanding negotiation loans is approximately $600 million. Capital transfers to Aboriginal groups for the settlement of comprehensive land claims varies from year-to-year depending upon the pace of settlement and the payment schedule set out in settlement agreements. Expenditures for capital transfers have averaged at $135 million a year over the past five years. Total capital transfers under existing land claim agreements over the past 30 years total approximately $2.4 billion ($2003).


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Implementation costs associated with comprehensive land claim agreements consist of both one-time costs and ongoing costs. The annual cost of implementing existing comprehensive land claim agreements has ranged from $ 33 to 47 million a year over the past five years.13

The current cost of the self-government program with respect to First Nations and Inuit, including ongoing negotiations plus the incremental costs associated with implementing existing self-government agreements, is approximately $50 million a year. The annual incremental costs of implementing pending self-government agreements (that is agreements that have reached the agreement-in-principle or final agreement stage but are not yet implemented) are projected to be approximately $30 million in five years (2008/09) and $135 million in 10 years (2013/14). Over time, final agreements will be reached at other tables, creating additional costs; however, the extent of incremental costs will be impacted by pending policy decisions on cost management, including the indexing of transfers to Aboriginal governments.

There is no source of funds for incremental costs to support Metis institutions, although limited capacity building funds have been provided to support start-up costs (included in the $2.9M figure mentioned above).

4.2: Measuring Results

The progress of negotiations is measured on an ongoing basis in terms of achievement of measurable milestones towards final agreement (framework agreements, agreements- in-principle, chapters of final agreements). Contribution funding is provided for negotiation preparedness for comprehensive land claims and for capacity building in relation to self-government negotiations. Funding agreements provide for reporting on expenditures and achievements. The current form of results measurement has been criticized for its focus on agreements as the outcome, with components of agreements as the performance measures. Both in the area of comprehensive land claims and self-government, Aboriginal groups have identified the need for performance measures which focus on: the capacity of the Aboriginal parties to

participate in negotiations; development of Aboriginal groups’ capacity for transition to self-government; and preparedness for implementation of claims agreements.

Implementation of land claim agreements and self-government agreements is monitored by joint implementation committees which prepare annual reports on the fulfilment of respective implementation responsibilities and obligations set out in implementation plans. Most agreements also include provisions for periodic review of the implementation of the agreement and for the review of the implementation of specific sections of agreements.

This type of implementation monitoring has been labeled as a 'checklist' approach to recording the fulfillment of specific obligations. This is an important and necessary function; however, Aboriginal groups have complained that this type of 'checklist' approach promotes a 'frozen rights' approach to implementation. Rather than viewing the treaty as the basis for an ongoing relationship for achieving shared objectives, this 'checklist' approach treats the treaty as a final settlement of rights and measures success in terms of the fulfilment of specific obligations. It also encourages the entrenchment of specific approaches to implementation, regardless of whether they are achieving desired outcomes. Aboriginal groups and the Auditor General have identified the need for more results based approaches to measuring the performance and impact of modern land claim and self-government agreements. These new approaches would provide the parties with information on the impact of the agreements, and on whether agreements were achieving their broader objectives in terms of certainty for resource development and improvement of socio-economic conditions in Aboriginal communities.


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Based on the Auditor General's recommendations, and in consultation with Aboriginal parties, an evaluation methodology has been developed to measure the impact of comprehensive land claim agreements and self-government agreements. It sets out various performance measures for the different components of land claim and self-government agreements. Indicators have been developed to measure the impact of each performance measurement.14

This methodology is currently being reviewed with the Aboriginal land claims coalition representing groups with modern land claim and self-government agreements. Plans are proceeding to engage with Aboriginal groups in the evaluation of selected agreements to further develop this methodology.

In addition to results measurement in the negotiations process and the intermediate outcomes associated with claims and self-government, the Department of Indian Affairs and Northern Development (DIAND) is developing methodologies to better understand the outcomes of comprehensive claims and self-government negotiations processes. Recent efforts have focussed on understanding the impact these agreements have on the well-being of the communities involved. Preliminary results using Census data indicate that these communities, that is, almost all communities with a comprehensive claim and those communities with stand-alone self-government agreements, enjoy better outcomes than registered Indians on-reserve in respect of

education, economic situation, integration and participation in the broader community, and overall community and cultural well-being. Of note, however, is that these gains have not always translated into gains in employment income. Work is continuing on refining both the measurement tools and the understanding of the factors that contribute to "well-being".

Part 5: Engagement

The concept of reconciliation (based on the principles set out in Annex A) provides a potential framework of guiding principles for engaging in renewal of Canada's policy approach for addressing Aboriginal and treaty rights, in a manner consistent with the recognition and affirmation of rights in the Constitution Act, 1982.

Reconciliation is a common theme in the proposals that the Assembly of First Nations, Inuit Tapiriit Kanatami and the Metis National Council presented at the April 2004 Aboriginal Roundtable. Those papers articulate further principles and approaches to achieve reconciliation and are reflective of these organizations' interpretation of the relationship principles articulated in RCAP and developed in constitutional law.

The sectoral table on negotiations (expediting land claims and self-government agreements) offers a forum to seek consensus with Aboriginal groups; provincial and territorial governments; and selected academics, jurists, and public interest groups on a framework of principles for addressing Aboriginal and treaty rights based on the concept of reconciliation. There are very different views on the scope and interpretation of Aboriginal and treaty rights which could generate significant debate, confrontation and demands for federal endorsement of specific legal and policy positions. The plenary session would respect the diversity of views while seeking to focus discussion on identification of common ground, including key principles enunciated in RCAP and by the SCC.

The sectoral forum is to include specific breakout sessions for Inuit. First Nations and Metis. These breakout sessions would allow for dialogue on what the guiding principles imply for addressing specific policy and process issues of concern to these respective groups:


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• Inuit - Focus would likely he on principles of interpretation and implementation of land claim agreements.

• First Nations - Dialogue could identify how the principles should inform policy development related to comprehensive claims, self-government and historic treaties. Further, this dialogue could result in the establishment of new mechanisms or tribunals to oversee fairness in the process for addressing rights and claims.

• Metis - Discussions would likely focus on how the principles would apply to implementation of the Powley decision, access to the Comprehensive Land Claims Policy, a mandate to negotiate a framework agreement and the more general development of policy with respect to Metis rights.

Dialogue in these breakout sessions could identify areas for follow- up and policy work that would need to be pursued in separate forums with specific Aboriginal groups and specific provinces or territories. For example, the British Columbia Treaty Process might be the appropriate forum in which to discuss how the application of these principles could change the treaty negotiation process in British Columbia to reduce conflict over Aboriginal rights, promote interim arrangements and expedite the achievement of treaties. Follow-up work with the comprehensive land claims coalition could be the best forum for addressing how the principles could improve implementation processes with respect to modern treaties. The dialogue would also identify areas requiring further internal legal and policy analysis in government before proceeding to specific engagement and follow-up.

Part 6: Options - Applying the Framework of Reconciliation

Government could continue to address emerging Aboriginal and treaty rights issues on an ad hoc basis. Changes to current comprehensive land claims and self-government policies, and new initiatives to address policy vacuums with respect to historic treaties and Metis rights, would emerge over time, driven by court decisions and political pressures. This type of reactive approach would result in continuing slow progress in land claim and self-government negotiations. It would also encourage increased litigation to lever policy change, and would be characterized by crisis management responses. This would generate increased uncertainty for third parties, government and Aboriginal peoples. Conflict over rights would continue to undermine efforts to establish cooperative approaches for improving the social and economic conditions of Aboriginal peoples.

Alternatively, government could seek to articulate a principles approach for addressing s. 35 rights, based on the concept of reconciliation and informed by constitutional law. Annex A sets out key principles of reconciliation as a basis for federal participation in such discussions. A principled framework for reconciliation could assist in bringing consistency to internal policy analysis and external engagement. This is necessary to address the increasing challenge of managing Aboriginal and treaty rights and to redefine our relationships with Aboriginal peoples in the Canadian federation.

A principled federal approach to reconciliation could be reflected in a federal policy statement, or in policy direction to all federal departments that sets the standards to which the Government of Canada will hold itself in addressing the s. 35 rights of First Nations, Inuit and Metis. Such a statement could also provide an organizing framework for engaging with different Aboriginal groups and provincial territorial governments in realigning and expanding policies, and improving current processes for addressing Aboriginal and treaty rights, including self- government.

Draft September 10. 2004

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Annex B identifies areas where there is pressure to realign federal policy in response to quickly evolving constitutional law regarding Aboriginal and treaty rights. It also identities the type of policy changes and possible options that a framework for reconciliation would suggest for responding to these pressures.

A major challenge in renewing policy approaches for addressing Aboriginal and treaty rights and in expediting agreements is the lack of public understanding of what s. 35 rights are and fluctuating support for negotiation processes. While there is public support of improving the social conditions of Aboriginal peoples and for promoting greater economic self-sufficiency, there is only limited support for policies to address Aboriginal and treaty rights.15 The special historic and constitutional status of Aboriginal peoples is not well understood by the Canadian public. There is a perception that claims processes and self-government are based on giving a particular ethnic or racial group (Aboriginal people) new special rights that are not enjoyed by other segments of the Canadian population, as opposed to achieving reconciliation of existing constitutional rights.

A framework of principles of reconciliation, grounded in constitutional law, and in the relationship principles of mutual recognition, respect, sharing and responsibility, could assist in creating public understanding for the objectives of federal policies for addressing Aboriginal and treaty rights.

Part 7: Action Plan

The sectoral session on expediting land claims and self-government agreements could be used to seek consensus on the concept and principles of reconciliation as a basis for renewing and addressing current issues in federal policy approaches for addressing Aboriginal and treaty rights. The session could also be used to identify specific issues of concern to Inuit, First Nations and Metis, as well as to the Government of Canada.

At the sectoral sessions, Aboriginal groups may seek immediate commitments from government for specific policy changes. The sessions would be used to explore issues and views, but specific recommendations for change would be taken under advisement. Any specific recommendations for policy change would be subject to review and direction by Cabinet, and to necessary follow- up work through engagement with appropriate Aboriginal groups and appropriate provincial or territorial governments.

Any consensus reached on key guiding principles of reconciliation could be articulated in a subsequent federal policy statement, or in an internal directive to federal departments, setting out guiding principles for their conduct in addressing Aboriginal or treaty rights issues. Such a statement would not result in any immediate change to existing policies or processes for negotiation of comprehensive claims or self-government agreements or alter existing processes,

for addressing historic treaties and Metis rights. Nor would it entail a wholesale review of existing policies. Specific policy changes would evolve over time through appropriate engagement with Aboriginal groups and provincial and territorial governments.

Using the sectoral table to discuss principles of reconciliation as a guiding framework for engaging in policy renewal could raise the expectations of many Aboriginal groups. It could result in a slowdown of existing negotiations at comprehensive land claims and self-government tables in anticipation of policy change. It is clear however, that at many tables the capacity to achieve agreements without policy change is limited. Inconsistencies both perceived and real, between current policies and jurisdprudence is already slowing down progress at many tables and causing many groups to pursue litigation an alternative. It is essential to find ways to move forward with more effective and expeditious processes…


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…for addressing Aboriginal and treaty rights and for implementing self- government. This process of policy renewal must be informed by constitutional law and principles of reconciliation which reflect the central purpose of s. 35 of the Constitution Act, 1982.

Secret

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Annex A

Principles of Reconciliation: A Framework for Renewing Canada's Policies with Respect to Aboriginal and Treaty Rights

The Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. Treaty rights include rights that exist or may be acquired by way of land claim agreements. The Aboriginal peoples of Canada include the Indian, Inuit and Metis peoples of Canada.

The constitutional recognition of Aboriginal and treaty rights flows from the fact that Aboriginal peoples as the original inhabitants of this land have distinctive rights and have made a unique contribution to establishing the country we now share as Canada. Section 35 (s 35) represents a constitutional commitment to respect the distinctive rights and place of Aboriginal peoples in the Canadian federation.

The Supreme Court of Canada (SCC) has stated that the basic purpose of section 35 of the Constitution Act 1982 is reconciliation of the preexistence of Aboriginal societies with the sovereignty of the Crown:

• "Section 35(1) provides a constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, customs and traditions, is acknowledged and reconciled with the sovereignty of the Crown"16 (Van der Peet).

• "The inclusion of the Metis in s. 35 is based on a commitment to recognizing the Metis and enhancing their survival as distinctive communities. The purpose and the promise of section 35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Metis culture"17 (Powley).

In elaborating on reconciliation, the SCC has interpreted s 35 as a means of balancing the recognition and preservation of the rights of Aboriginal peoples, with the Crown's ability to limit those rights in the interests of all Canadians. In this sense the Court has acknowledged the mutual and interdependent nature of the relationship amongst Canadians which allows Aboriginals to preserve and enjoy their distinctive cultures and traditions, while accepting that they live and participate in a shared economy and society with other Canadians.

Reconciliation has become an organizing principle both of constitutional law and public policy for renewing relationships between Aboriginal Peoples and Canadian society. The Royal Commission on Aboriginal Peoples (RCAP) elaborated fundamental principles for achieving reconciliation through renewed relationships:

"We cannot ignore the wrongs of the past or the rights flowing from the historical relationships between aboriginal and non-aboriginal people in Canada. But we are not prisoners of the past, and we can restore and renew that relationship on the basis of mutual recognition and respect, sharing and responsibility,"18

Aboriginal peoples have embraced these principles as the basis for renewing relationships.

In response to the RCAP the government of Canada committed itself to reconciliation and renewal: …

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Secret

….. "Reconciliation is an ongoing process...The Government of Canada recognizes that policies that sought to assimilate aboriginal people, women and men, were not the way to build a strong country. It must instead continue to find ways in which aboriginal people can participate fully in the economic, political, cultural and social life of Canada in a manner which preserves and enhances the collective identity of aboriginal communities, and allows them to evolve and flourish in the future."19

Reconciliation: Principles for Renewing- Relationships20

Reconciliation involves establishing a framework for living together based on a recognition and co-existence of rights rather than on the extinguishment of rights. It is an ongoing process of renewing relationships between the Crown and Aboriginal peoples based on the following principles:

• Mutual recognition: Reconciliation must be grounded in the recognition and affirmation of Aboriginal rights in s. 35(1) of the Constitution Act, 1982.

Mutual recognition "calls on non-Aboriginal Canadians to recognize that Aboriginal peoples are the original inhabitants and caretakers of this land and have distinctive rights and responsibilities that flow from that status."21 It encompasses recognition of Aboriginal and treaty rights including the inherent right of self-government as a basis for preserving the distinctiveness of Aboriginal societies, the continuation of their practices and traditions and their special relationship with the land.

Mutual recognition is premised on coexistence and interdependence of Aboriginal and non-Aboriginal Canadians and their shared citizenship within the Canadian federation. Aboriginal and treaty rights are not absolute: they operate within the framework of the Canadian Constitution which requires a balancing between the rights of Aboriginal peoples, the sovereignty of the Crown, and the rights of other Canadians. This balancing should contribute to predictability and clarity for the exercise of rights, facilitate social and economic development, and promote harmonious relationships among governments and citizens.

• Mutual Respect: Reconciliation must be grounded in respect for the unique position of Aboriginal peoples in Canada, including their distinctive cultures and traditions and, more generally, for the diversity of peoples and cultures making up Canada. It also includes mutual respect for the values we share as Canadians: democratic values, respect for human rights, rule of law and the principles articulated in the Canadian Charter of Rights and Freedoms.

Mutual respect, combined with mutual recognition, provides a basis for coexistence - "a relationship in which people live side-by-side, retaining rights" and cultural traditions inherited from the past, in a federation "that values this form of political and cultural diversity."22 Mutual respect is directed at enhancing the participation of Aboriginal peoples in the Canadian federation: "The constitutional objective is reconciliation, not mutual isolation."23

• Mutual Benefit Sharing: Sharing represents a commitment to the principle that all Canadians should share in the country's prosperity, that Aboriginal peoples should be able to build on and develop their unique identity and status through such sharing.

Historic treaties are foundational agreements that were entered into for the purpose of providing the parties with the means of ensuring survival and stability, based on the principle of mutual benefit. Sharing of the benefits from the development of lands and resources remains a continuing objective….


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….of modern treaty or land claim negotiations. The principle of mutual benefit must also be reflected in self-government agreements. Aboriginal governments and federal and provincial governments need to develop cooperative arrangements with an appropriate sharing of financial

resources, responsibilities and accountabilities so as to ensure that Aboriginal citizens have access to public programs and services comparable to those enjoyed by other Canadians.

• Mutual responsibility: Reconciliation is premised on ongoing relationships which involve mutual obligations and responsibilities by all parties. The fiduciary relationship between the Crown and Aboriginal peoples entails obligations that must be respected in addressing Aboriginal and treaty rights. Negotiated agreements, including historic treaties, modern treaties or land claim agreements and self-government agreements, establish a framework for ongoing relationships with specific rights and obligations for all parties. Ongoing processes are required for managing these relationships, for overseeing the fulfilment of respective responsibilities of the parties, and for resolving disputes regarding interpretation and implementation of those responsibilities.

Relationships, however, involve more than a series of rights and obligations among the parties, They are a means for parties to work together to achieve shared objectives. Relationships are not static; they require mechanisms and processes through which parties can measure results and reexamine how they implement rights and obligations to ensure that they are contributing to their shared objectives.

The Process of Reconciliation

Reconciliation can take many forms. It can be achieved through treaties, through negotiated agreements, or through legislative initiatives or program and service arrangements. Given the diverse historical, cultural and socio-economic circumstances of First Nations, Inuit and Metis peoples in different parts of the country, reconciliation will not be achieved through a "one-size-fits-all" approach. There continues to be differing views on the scope and nature of Aboriginal and treaty rights and on the form that reconciliation should take. However, the rulings of the SCC since 1982 contain significant guidance and legal principles which can provide common ground in pursuing processes of reconciliation:

• "The constitutional objective is reconciliation not mutual isolation Aboriginal peoples do not stand in opposition to, nor or they subjugated by, Canadian sovereignty. They are part of it" (Mitchell).24

• Negotiations are the preferred means for achieving reconciliation. "Ultimately, it is through negotiated settlements, with good-faith and give-and-take on all sides, reinforced by the judgments of this court, that we will achieve the basic purpose of section 35(1) - the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown. … let's face it we are all here to stay" (Delgamuuxw),25

"The recognition and affirmation of aboriginal rights in section 35(1) of the Constitution Act, 1982, provides the solid constitutional basis upon 'which subsequent negotiations can proceed" (Sparrow),26

September 10, 2004

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• The special fiduciary relationship between the Crown and Aboriginal peoples must be recognized and the honour of the Crown must be upheld in addressing section 35 rights:

"A general guiding principle for section 35 (1)" is that "the Government has the responsibility to at in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation -of aboriginal rights must be defined in light of its historic relationship" (Sparrow)27

• Section 35 rights are not absolute: "The ability to exercise personal or group rights is necessarily limited by the rights of others...Absolute freedom in the exercise of even Charter or constitutiona lly guaranteed aboriginal rights has never been accepted, nor was it intended" (Nikal). 28

• Section 35 rights cannot be unilaterally extinguished. Any infringement of Aboriginal rights must be justified: "...federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights" (Sparrow).29

• "Fair compensation will ordinarily be required when aboriginal title is infringed" (Delgamuukw).30

• Aboriginal rights have to be given priority, but they have to be reconciled with other rights and interests: "...objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the types of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interests of all Canadians and, more importantly, the reconciliation of Aboriginal societies with the rest of Canadian society may well depend on their successful attainment" (Gladstone).3

• In approaching the terms of the treaty, the honour of the Crown is always involved and no appearance of sharp dealing will be countenanced (Taylor).

• Historic treaties should be liberally construed and doubtful expressions resolved in favour of the Aboriginal parties. Further, "the onus of establishing strict proof of extinguishment of a treaty or aboriginal right lies upon the Crown" (Badger)32

Taken together these various principles provide significant guidance with respect to the interpretation of Aboriginal and treaty rights, the duties of the Crown when addressing the potential infringement of Aboriginal or treaty rights, the conduct of negotiations or other processes for dealing with Aboriginal and treaty rights. They reflect the need for balancing between the rights and interests of all Canadians, Aboriginal and non-Aboriginal, as the basis for reconciliation, consistent with the constitutional purpose of s. 35 of the Constitution Act, 1982.

Draft September l0, 2004

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Annex B

Applying the Framework of Reconciliation to Canada's Policies and Processes

Current Policy Approach New Policy Direction

General

• Federal policy approach to s. 35 rights • Address Aboriginal and treaty rights based

characterised by significant policy gaps on mutual relationship principles

and disconnects with constitutional law of reconciliation and informed

by constitutional law

• S. 35 rights addressed in a variety of • New mechanisms:

separate units with policy and - to better coordinate federal policy development;

operational stovepipes - to better report on implementation of historic

treaties and existing land claim agreements:, and to facilitate negotiation of land claims and self-government agreements

Comprehensive Land Claims Policy and Processes

• Treaty is a contract to achieve a one time final settlement of all Aboriginal land rights

• Certainty is achieved through a surrender and exchange of undefined Aboriginal rights for defined treaty rights

• No recognition of Aboriginal rights in advance of final agreement

Limited interim measures to consult on development and to protect certain lands in advance of a settlement

• Treaty is a framework for an ongoing relationship providing predictability and clarity for use and management of land and resources

• Certainty is based on recognition and coexistence of rights rather than a surrender of rights (Note: certainty techniques in both the Nisga'a and Tlicho agreements have already moved in this direction.)

• Negotiations based on recognition that the Aboriginal party has Aboriginal rights within their traditional use area and enhanced interim measures to manage the legal duty to consult; and, accommodate Aboriginal interests in advance of final agreement, for example, co-management structures and resource benefits from development


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A Current Policy Approach New Policy Direction

Self- Government

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• Treaty is a framework for an ongoing relationship providing predictability and clarity for use and management of land and resources

• Certainty is based on recognition and coexistence of rights rather than a surrender of rights (Note: certainty techniques in both the Nisga'a and Tlicho agreements have already moved in this direction.)

• Negotiations based on recognition that the Aboriginal party has Aboriginal rights within their traditional use area and enhanced interim measures to manage the legal duty to consult; and, accommodate Aboriginal interests in advance of final agreement, for example, co-management structures and resource benefits from development

• No certainty until a final agreement is achieved (on average 15 years).

• Negotiations suspended if an Aboriginal party uses the courts to seek interim recognition or protection of rights

• Implementation plans and implementation committees to monitor specific obligations

• Aboriginal participation in negotiation funded by loans as an advance against a final settlement

• Incremental treaty agreements or sectoral agreements which provide certainty, promote economic development, build capacity and improve socioeconomic conditions of Aboriginal communities as the parties negotiate an overall treaty agreement. (Note: Cabinet has mandated negotiation of incremental treaty agreements, but models have not yet been developed.)

• More flexible approach to use of courts during negotiations to protect or clarify rights

• Relationship-based approaches to implementation focussed more on results and shared objectives

• Aboriginal participation in negotiations funded by contribution and/or a share of resource benefits

• Canada recognizes the inherent right of self-government as an existing Aboriginal right. This policy:

- does not recognize that self-government is an existing right in historic treaties; and

- does not allow specific recognition that any group in negotiations has an inherent right of self-government,

• Continue to recognize the inherent right of self-government as an existing Aboriginal right, but;

- recognize that self- government is an element of historic treaty relationships; and

- recognize that Aboriginal groups in negotiations hold or share in the inherent right of self-government.

• Entry criteria for negotiations focus on evidence of community support for negotiations rather than for a vision of self-government, including governing structures and accountability mechanisms. As a result, lengthy jurisdictional negotiations have occurred in advance of addressing core governance issues

• Jurisdictional negotiations have not always been linked to the capacity to exercise the jurisdiction.

• Different Jurisdictional descriptions and priority of law rules have been negotiated at

• Develop entry criteria for negotiations requiring an approved constitution that identifies governance structures and contains a citizenship code, and accountability and redress mechanisms,

• Require aggregated government structures • or commitments to cooperative arrangements with other governments as a condition for negotiation of certain jurisdictions.

• Facilitate access to a more standard list of core powers (list one powers under the current inherent right policy) without the


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Consultation and Accommodation

• Entry criteria for negotiations focus on evidence of community support for negotiations rather than for a vision of self-government, including governing structures and accountability mechanisms. As a result, lengthy jurisdictional negotiations have occurred in advance of addressing core governance issues

• Jurisdictional negotiations have not always been linked to the capacity to exercise the jurisdiction.

• Different Jurisdictional descriptions and priority of law rules have been negotiated at

• Develop entry criteria for negotiations requiring an approved constitution that identifies governance structures and contains a citizenship code, and accountability and redress mechanisms,

• Require aggregated government structures • or commitments to cooperative arrangements with other governments as a condition for negotiation of certain jurisdictions.

• Facilitate access to a more standard list of core powers (list one powers under the current inherent right policy) without the

• Own-source revenue policy applies only to self-governing First Nations, creating a disincentive to move to self-government

• Many treaty Fist Nations lack the security to move into self- government arrangements without securing access to economic benefits from resource development in their traditional territories off reserve

• No source of funds identified to address incremental costs of self- government

• Implementation committees oversee specific obligations and negotiate periodic funding agreements and program transfers

• Equitable own-source revenue treatment and incentives for both self-governing First Nations and Indian Act bands.

• Pursue initiatives with provincial governments to secure greater First Nation participation in, and benefit from, resource development within traditional treaty territories.

• Provide reasonable new funds for incremental costs and link to use of shared institutions, aggregation for service delivery, and harmonization with other governments to achieve economies of scale and more effective programming.

• New mechanisms to manage and coordinate new intergovernmental relationships

• Consultation is conducted on an ad hoc policy basis with different approaches by different departments.

• Limited federal expertise and capacity for consultation..

• Lack of clarity regarding which Aboriginal groups should be consulted, no agreed- upon procedures for consultation, and limited capacity of Aboriginal groups to participate.

• limited mechanisms to address accommodation of Aboriginal rights or interests emerging from consultation.

• Develop standard federal consultation guidelines requiring all departments to manage a federal duty to consult both in, the context of proven Aboriginal rights and claimed rights. Review, inter alia, federal policies on Crown land disposal and environmental review to achieve compliance,

• Training and capacity development in federal departments.

• Initiatives to clarify which Aboriginal groups are to be consulted and to develop mutually acceptable consultation procedures and funding to support Aboriginal participation,

• Enhanced measures (e,g, co-management structures or benefit sharing) to accommodate Aboriginal interests identified during a consultation process

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Historic Treaties

• Mandates for exploratory treaty tables are restricted to discussion of issues and recommendations.

• Treaty commission activities are restricted to facilitation of exploratory discussions, public education and administration of research

• A Crown-First Nations divergence of opinion exists on issues of treaty interpretation and implementation. Litigation is the sole option for resolution.

• No formal federal policy framework or mechanisms to address historic treaty implementation.

• Self-government is not recognized by Canada as a treaty right; as a result, self-government is not seen as a vehicle for addressing treaty implementation.

• Courts remain the principle vehicle to address disputes over treaty rights and interpretation. The Specific Claims Policy deals with certain treaty claims (e.g. treaty land entitlement) but most treaty related claims fall outside the scope of the Specific Claims Policy.

• Mandates for treaty tables which would include a dispute resolution process.

• Utilization of the complete mandate of treaty commissions, including provision of mediation services

• A consultation mandate to discuss principles of treaty interpretation and implementation.

• A Treaty Relationship Act containing clauses on: treaty interpretation principles; treaty implementation guidelines; - mandating authority for exploratory treaty tables and treaty commissions; and a capacity to monitor progress on all treaties, historic and modern.

• Recognize that self-government is a fundamental element of the treaty relationship. Use self-government and new inter-governmental relations as one means to promote implementation of common understandings on treaty issues.

• Expand the scope of the Specific Claims Policy or establish an a ltemative dispute resolution process to manage certain categories of treaty related claims.


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Metis Historic Rights

• No current policy for addressing Metis s. 35 rights.

• Metis self-government negotiations limited to development of institutions and program and service delivery arrangements (no lawmaking powers and no treaty protection for Metis self-government agreements).

• Metis claims to land resources not negotiable under the Comprehensive Land Claims Policy. Initiatives are under way: - with provincial governments and Metis organisations for interim harvesting agreements pursuant to the Powley decision, which recognized s. 35 hunting rights for Metis; and with Metis or4inisations for enumeration of members and research to identify Metis communities that may have s. 35 rights.

• Active litigation agenda regarding: federal responsibilities for Metis under s. 91(24); and Metis access to policies and • programs for Indians and Inuit on the basis of s.15 equality rights.

• Joint work with Metis organizations and provincial or territorial governments to develop a policy framework for addressing Metis S. 35 rialits.

• Develop criteria for recognition of Metis governments (e.g. a constitution setting out a citizenship code, governance structures, and accountability and redress mechanisms) and seek support of provincial governments for negotiation of lawmaking powers and for constitutional protection of self-government agreements.

• Continue work with Metis organisations and provincial governments to negotiate agreements with respect to the exercise of Metis s. 35 harvesting rights.

• Continue research with respect to the potential for other s. 35 land and resource rights and assess policy options for addressing those rights

• As most Metis land and resource rights. claims overlap with historic treaty areas, pursue initiatives, with provincial governments to secure both Metis and First Nation participation in, and benefit from resource development activities in traditional territories.

• Examine options for targeted federal programming or cooperative programming with provincial governments to support maintenance of distinctive Metis culture

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Endnotes

1. Key cases include R. 1., Sparrow (1990), R. v. Van der Peet (1996) and R v, Defamuukw (1')0 7 which, in particular provided some clarification on the nature of Aboriginal title.

2. This section may require revision pending the SCC's decisions in the Taku and Haida cases,

3. R. v. Sparrow, [1990]] SCT.R. p. 1103.

4. ibid.

5. ibid.

6. ibid.

7. ibid.p.I104.

8. ibid. p. 1105.

9. ibid. p. 1106.

10. ibid p 1077.

11. ibid. p. 1106.

12. Delgammukw v. B.C., [1997] 3 S.C.R., I? v. Powley, [2003] 2 S.C.R.

13. Excluding implementation costs for the James Bay Agreement

14. Please refer to the Evaluation Framework for specific indicators. Performance measures include: creation of certainty and clarity regarding ownership and use of lands and resources; participation of Aboriginal people in decision-making concerning the use, management and conservation of wildlife, land and water and other resources; creation of conditions that support the emergence of new Aboriginal governance structures and relationships among federal, provincial and Aboriginal regional/local governments; creation a stable environment for investment in the settlement area for the benefit of both Aboriginal and non-Aboriginal people; enabling protection of the traditional economic and spiritual relationship between Aboriginal people and the land; encouraging and promoting self-sufficiency and cultural and social well-being for Aboriginal peoples; providing Aboriginal communities with the tools to be meaningful participants in the general economy; and providing for the recognition Of Aboriginal cultural values and traditions within Canadian society at large.

15. In polls done for the Centre for Research and Information on Canada 's Portraits of Canada, 2003 (see November 26, 2003 News Release "Canadians Want Strong Aboriginal Cultures But art. Divided on Aboriginal Rights") 49 of Canadians reported that they "believe few or none tof the land claims made by Aboriginals] are valid." Dr. Parkin of the C. notes that "previous studies hipve shown that public support for Treaty rights rises when people are informed that these rights are constitutional! V protected," Similarly., the 2002 ipsos Reid Public Opinion Study

"Public Views Regarding Aboriginal People 2002" notes that only 50 [of Canadians] agree that Aboriginal People should have the rights


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and status they need to protect their language and heritage, even if its means they may have certain rights other Canadians do not have." Further, "48 feel that settling outstanding land claims is an important priority areas for governments [and] 37 are supportive of working towards self-government."

16. R.. v. Van der Peet, [1996] 2 S.C.R. 507, para 31

17. R. v. Powley, [2003] 2 S.C.R. 207, para 13

18. RCAP, Volume 2, Part I. back cover

19. Gathering Strength - Canada's Aboriginal Action Plan (1997), Statement of Reconciliation

20. The terms mutual recognition, mutual respect, sharing (mutual benefit), and mutual responsibility were formulated by the Royal Commission on Aboriginal Peoples, and are articulated RCAP, Volume 1, Chapter 16, as the basis for a renewed relationship.

21. RCAP, Volume 1, Chapter 16, 1.1

22. A similar interpretation of the concept of co-existence is outlined in RCAP, Volume 1, Chapter 16, 1.1. The Government of Canada maintains that co-existence occurs within the federation.

23. Mitchell v. Minister of National Revenue [2001] 1 S.C.R. 911 para 133

24. Mitchell v. Minister of National Revenue [2001] S.C.R. 911 para 133 and 135 •

25. Delgamuukw v. B.C..[1997] 3 S.C.R. 1010, Lamer C.J. at para 186

26. R. v. Sparrow [1990] 1 S.C.R. 1077

27. R v. Sparrow [1990] 1 S.C.R. 1108

28. R. v. Nikal [1996] 1 S.C.R. XCII

29. R. v. Sparrow [1990] 1 S.C.R. 1109

30. Delgamuukw v. British Columbia [1997] 3 S.C.R. para 169

31, R. v. Gladstone [1996] 2 S.C.R. para 75

32. R.. v. Badger [1996] 1 S.C.R. para 41

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Draft

POLICY DIRECTIONS IN THE SIX AREAS OF FOCUS

OVERVIEW

Context

In the Speech from the Throne on February 2, 2004, the Government of Canada envisioned a future wherein Aboriginal peoples would share fully in Canada's good fortune and participate fully in nation life, on the basis of historic rights and agreements, with greater economic self-reliance and a better quality of life.

At the Canada - Aboriginal Peoples Roundtable on April 19, 2004, the Prime Minister challenged those present and Canadians in general to "break the cycle of poverty, indignity and injustice in which many Aboriginal Canadians live", and urged all to work together make "real improvements in their lives and living conditions". He also noted that in order to ensure success, three things are required:

o setting clear goals with Aboriginal people;

o ensuring that the goals are meaningful and measurable; and

o agreeing to a concrete plan to achieve those goals.

In its discussion on the Aboriginal Policy Framework, and further to statements made by the Prime Ministers at the Canada — Aboriginal Peoples Roundtable, the Cabinet Committee on Aboriginal Affairs agreed that particular attention would be paid to six key policy areas: health, lifelong learning, housing, economic opportunities, results and accountability, and negotiations. The Committee also agreed to a new approach to policy development: "doing things with, rather than for, Aboriginal people", meaning that Aboriginal people have to be actively involved in policy development and implementation from the outset. The Committee further recognized that success was not achievable without deepening the partnership with provincial and territorial governments, given that they are the primary provider of basic programs and services to around 70% of the Aboriginal population in Canada.

The Committee on Aboriginal Affairs also agreed to pursue the goal of closing the gap in life chances between Aboriginal people and other Canadians within a generation. This goal was given further elaboration in the Liberal Party's 2004 electoral platform, which stated that a Liberal government will work with Aboriginal leaders, the provinces and territories to put in place the quality-of-life improvements that will enable:

o Aboriginal high-school completion and post-secondary participation to equal that of n Aboriginals;

o Aboriginal employment levels to equal those of non-Aboriginals;

o Aboriginal health status as measures by life-expectancy and infant mortality to match the Canadian average; and

o all Aboriginal communities to have, by 2008, clean water and adequate housing.

A process has been developed to act on the three keys to success and pursue the goals set out above, engage Aboriginal people, work with provincial/territorial governments, and undertake internal policy….

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Draft

….. work. The process is built around two commitments the Prime Minister made in relation to following up on the April 19 Roundtable:

o convening sessions for each of the six areas of focus, which will involve representatives of the Government of Canada, Aboriginal organizations, provincial/territorial governments, the private sector, non-government public institutions, and others in order to bring together a broad range of people with expertise and hands-on experience., and

o convening a Policy Retreat, which is now being planned for the Spring, 2005, which would be a political level meeting involving the Government of Canada, representative of provincial and federal governments and Aboriginal leaders.

The Prime Minister has challenged all those involved to be bold and innovative, recognizing that we must break free of the status quo if we are achieve a society where the life chances of Aboriginal people do not continue to lag behind those of other Canadians. It must also be recognized that this new approach to making Aboriginal policy is a transparent and inclusive one, in which the Government of Canada does not decide all of the substance in advance of discussions with Aboriginal people and does not set out a national agenda without first engaging provincial and territorial governments. It is an approach that is based on the premise that responsibility for achieving good outcomes is shared and that the Government of Canada does not have all the policy and program levers to achieve success.

Certain Ministers/Departments have been asked to lead work within the federal government on the keys area of focus: health, lifelong learning, housing, economic opportunities, results and accountability, and negotiations. Over the course of the summer, each of the lead Departments developed a strategic policy paper which is intended to lay the ground for ongoing work, including in-depth consideration of directions for change in each of the six areas by this Committee in the coming months. This document pulls together key elements of the six strategic policy papers. In particular, it sets out the proposed policy directions for change and the matters that are proposed for discussion at the sectoral session for each of the six key areas.

It should be noted that the proposed directions will be elaborated further and ultimately woven together for the planned policy retreat in the Spring, through a process of collaborative work with Aboriginal organizations, provincial/territorial government representatives and others, beginning with the sectoral sessions planned for later this fall and early winter. The Committee will play an

integral part in this process as it will be considering each of the key areas in more depth at meetings over the winter. after sectoral sessions have been held. It will also have the opportunity, before the policy retreat to consider a proposed, integrated agenda for action for the six sectors. Where required, approval of specific policy or program changes, and associated financial resources will be sought through other Cabinet Committees in the usual manner.

At this time, and in relation to this document, the Cabinet Committee on Aboriginal Affairs is being asked whether the proposed directions for change set out here, which should he understood also as the proposed priority directions in the six areas, are the appropriate ones to pursue in both external work with other partners and internally over the course of the next six months, The same is being, asked of the Committee in relation to matters proposed for discussion at the sectoral sessions.

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Draft

Common Themes and Inter-relationships Among the Six Areas

The areas of health, life-long learning, housing and economic opportunities are seen as key to improving the quality of life of Aboriginal people in Canada. There is a recognized need to bring more coherency to government programs and services in each of these four areas given that programs and services in a single area are spread across a number of departments and do not always work together well. This is the case in the area of lifelong learning, for example, where federal programming is not organized in a manner that is consistent with supporting a life-long learning continuum approach.

It is important also to achieve coherency in policy, programming and the delivery of services across the four areas, given the interrelationships among them. Change needs to happen in all four areas in a coordinated manner in order for there to be progress in any one area. For example, it is recognized that overcrowded housing can put residents at greater risk for ill health. If average income levels of Aboriginal people were on par with those of other Canadians, they would have a larger range of choice in affordable housing, and likely less crowding. It is well-understood that educational achievement, especially high-school completion, is a determinant of future income levels. To complete high school successfully, children require, among other things, a supportive environment for learning. An overcrowded house can inhibit studying.

Coordination and collaboration with provincial/territorial governments is also recognized as a challenge that needs to be addressed in all areas. Too often, programs and services for Aboriginal people, e.g. education and health services for First Nations on-reserve, are not as well- linked as they could be with provincial systems where there is a larger body of expertise, infrastructure and standards that could be tapped. Furthermore, about 70% of Aboriginal people live off-reserve and receive basic programs and services from the province. Simply put, gaps in life-chances for these people will not be closed unless provinces and territories are part of developing the solutions.

The multiplicity of delivery agents and Aboriginal institutions exacerbates the situation. Not only does this present a problem for coordination, it also gives rise to a considerable amount of duplication and inefficiency. A more serious problem, and one which is noted in the policy work done to date in each of the four sectors is that many Aboriginal institutions and delivery agents have governance and capacity shortfalls. It is recognized that good governance and enhanced accountability is important for, achieving better results for Aboriginal people from their programs and services, and that investment in capacity building, such as in information technology, particularly in the public administration field, will also be helpful in this regard.

It is also recognized that one size will not fit all Aboriginal groups (what Aboriginal organizations refer to as a "pan-Aboriginal approach") owing to cultural differences and also to significant variations in locale and circumstances. Differentiated approaches will he needed. On the other hand, there also needs to be a sufficient level of aggregation or economy of scale among Aboriginal communities to make programs and services effective.

If there is one overriding and broad direction for the areas of health, lifelong learning, housing and economic opportunities, it is to have tripartite (federal. Aboriginal, provincial/territorial) approaches and systems for Aboriginal health, life-long-learning, housing and economic opportunities which all complement one another.

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Draft

Results and accountability cuts across the all of the key areas. Focussing efforts and expenditures on achieving results, measuring and reporting on outcomes rather than merely outputs, and taking responsibility for achieving results is required of all governments and their leaders, including Aboriginal governments and institutions, if transformative change is to be effected.

Aboriginal organizations have made it clear to the government that it must recognize that collaborative work on socio-economic matters takes place in the context of a special relationship based on the unique place of Aboriginal peoples in Canadian society. The proposed policy directions and sectoral session matters for the area of negotiations (which are essentially about addressing the rights of Aboriginal. peoples), may give us a way of setting out this context as the focus would be on elaborating key principles to guide the Crown - Aboriginal peoples relationship. Indeed, it may be a critical factor in building the trust and stronger partnerships that we need to move forward together.

HEALTH

Context

Current health service arrangements for Aboriginal people are a complex patchwork of federal-provincial-territorial programs and services. Provincial governments provide insured services,

including physician and hospital care, to all Aboriginal people, and Community, public and home care health services to those living off-reserve. The federal government's Aboriginal health programs and services are largely devoted to on-reserve First Nation and Inuit community health, non- insured health benefits, primary care in remote communities, mental health crisis intervention, and medical transportation services. While they are based on policy choices made over time rather than on legislation or legal obligation, shifting responsibility for them to provincial and territorial governments would be strongly resisted by both First Nation and Inuit groups and provincial/territorial governments. The federal government also provides some health promotion and disease prevention programming targeted at the Aboriginal population generally.

While there are real differences among First Nations, Inuit and Metis, in general, the health status of Aboriginal people lags behind that of other Canadians. This population tends to be more at risk in relation to factors that influence health, e.g. employment and income levels, quality of drinking water, exposure to contaminants, etc. In providing services to First Nations and Inuit, the federal government faces challenges similar to those in provincial health care systems (e.g. rising cost of pharmaceuticals), but there are also others. These include the limited capacity in many First Nation and Inuit communities to take an effective role in managing health care for their members, the higher rate of chronic diseases such as diabetes, and the isolation of many communities.

A significant problem is the gaps and discontinuity between federal and provincial/territorial programs and services. The result is that a number of Aboriginal people experience a lower level of or less access to health services than other Canadians. There are also differences in the way health services are delivered to First Nations, Inuit and Metis; these groups maintain the view that there cannot be a single solution that fits all of them.

At the Special Meeting of First Ministers and Aboriginal Leaders on September 13, 2004, provincial and territorial governments recognized the need to address challenges with respect to the health of Aboriginal people. In general, they were receptive to new initiatives (several Premiers noted some of the best practices undertaken in their jurisdictions), and open to more collaboration and integration of services. However, provincial and territorial governments can be expected to continue to call on the

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Draft - Secret

federal government to assume the lion's share of the responsibility for and costs of improving Aboriginal health.

Proposed Policy Directions

Priority policy directions were essentially set at the September 13 Special Meeting, in which First Ministers and Aboriginal Leaders agreed to work together to develop a blueprint to improve the health status of Aboriginal peoples, as well as their health services, through:

o better integration of Aboriginal health services with provincial systems and better adaptation of these services to the specific needs of Aboriginal peoples (to ensure improved delivery of and access to services);

o ensuring that Aboriginal peoples benefit from improvements to the Canadian health system; and

o a forward looking agenda of prevention and promotion.

The Government of Canada announced at the same time that it would enhance its budget for Aboriginal health and devote the additional funding to:

o establishing an Aboriginal Health Transition Fund to facilitate integration and adaptation (in order to improve delivery of and access to services);

o undertaking an Aboriginal Health Human Resources Initiative to increase the number of Aboriginal people choosing health care professions, adapt current professional criteria to ensure cultural sensitivity and improving retention of health care workers serving Aboriginal peoples; and

o making additional upstream investments in initiatives aimed at disease prevention and health promotion, i.e , prevention of diabetes and youth suicide and promoting good maternal and post-natal and early childhood health in children.

Sectoral Session Matters

The Sectoral session would be an important step in working towards health services for Aboriginal people (including those related to prevention and promotion) that are of comparable quality to those other Canadians enjoy and to which Aboriginal enjoy equitable access to Canadians living in comparable locations, and in which Aboriginal people have an increased role in planning and delivery. Mindful of these objectives, it is proposed that the Sectoral Session explore and provide advice on the perspectives and distinct needs of First Nations, Inuit and Metis, as well as differing circumstances related to geography (e.g. urban, rural and remote) and gender, in a way that complements the three key elements of the blueprint which First Ministers and Aboriginal Leaders committed to developing. (The blueprint will be pursued largely through existing federal and provincial processes.) It is further proposed that it focus on the particular targets of closing the gap in health status by reducing infant mortality and increasing life expectancy, and improving the rate of satisfaction of Aboriginal people with the health system and services.

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LIFE-LONG LEARNING

Context

Investments over the last 30 years in both kindergarten to grade 12 education (K-12) and post-secondary education (PSE) have made a real, tangible impact on the total level of Aboriginal educational attainment: First Nations communities now manage their own schools, a significant advancement from the days of residential or day schools run by either Indian Affairs or the churches; and gains in education have accounted for the single biggest contribution to the closing of the gap in Human Development Index between Aboriginal Canadians and Canadian society as a whole. Since the last 10 years or so, the Government of Canada has also invested in other elements of the lifelong learning continuum: early childhood development, early learning, child care and skills training programs.

That said, there are significant challenges facing the Government of Canada and First Nations, Metis and Inuit communities and individuals: far too many Aboriginal children do not come to school ready to learn; far too many do not complete high school; many of those Aboriginal youth and young adults who do complete high school are not prepared to make a successful start in PSE institutions or to enter the labour market; and Aboriginal PSE students face multiple challenges affecting retention and completion of degrees. Also, for the majority of Aboriginal people, provincial and territorial governments are the primary provider along the lifelong learning continuum. Bluntly put, and notwithstanding the achievements of the last-thirty years, the current levels of Aboriginal educational achievement are far too uneven, and do not compare favourably at all with the educational achievements of Canadians as a whole.

The next ten years will see over 315,000 First Nations, Inuit and Metis children go through the K-12 education system and potentially into PSE studies. Given the range of learning challenges, will this be a generation at risk, or a generation of Aboriginal students that will be capable of making a positive contribution in their own communities and in Canada's labour force as a whole?


Aboriginal peoples, federal, provincial and territorial governments as well as learning institutions and the private sector share responsibility for different aspects of Aboriginal lifelong learning across the continuum. Research and statistical evidence suggest that the overall regime of federal, provincial, territorial and Aboriginal services and programs currently supporting Aboriginal learners is not producing the required results. This suggests that a concerted coordinated effort by all partners is required to ensure consistent access to culturally relevant quality programs and services and improved learning outcomes throughout the continuum.

Currently, Indian and Northern Affairs Canada (MAC) funds about 119,000 First Nations students in K-12, and supports another 26,000 First Nations and Inuit students in PSE. In 2001, 33.2°•0 of the total Aboriginal population was aged 14 and under. The decisions to be made now by the GM ernmnt of Canada, working in partnership with Aboriginal educators, organizations and communities, and other directly interested parties like provinces and territories, will be

critical in terms of changing the status quo and creating the conditions for a radical improvement in the educational attainment results of Aboriginal learners. This is particularly true where Aboriginal students comprise a significant and growing percentage of the potential new labour market entrants western (western Canada and the North).

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The approach recommended here involves two broad initiatives: first, radical and sweeping changes are required in the core delivery and funding mechanisms associated with both K-12 and PSE education services; and second, early childhood development (ECD), K-12 and PSE must be embedded in a wider • range of services and initiatives aimed at improving Aboriginal lifelong learning, including attachment to the labour force.

1. Radical Reform of Core Educational Approaches: K-12 and PSE

a) K-12 education services: These services are now delivered through individual schools, either those found on-reserve and managed by First Nations communities, or non-Aboriginal schools providing services on a fee-for-service basis. This situation, involving over 400 separate First Nations schools and non-Aboriginal schools, stands in stark contrast to the situation in provincial K-12 systems, where primary and secondary schooling are delivered through systems, that is, regional school boards, with all the benefits of aggregation and economies of scale.

Recommendation: The Government of Canada work with First Nations organizations and educators and provinces to facilitate the growth ofregional First Nation education systems and culturally-appropriate inter-connections with provincial education systems (including ECD and adult learning). Priority initiatives could include:

o Continued focussed investment in special education services to stabilize elementary and secondary school classrooms and increase learning capacity for "learning challenged" students living on reserve while early childhood development related programs can address these learning problems in the family at the pre-natal and pre-school stages of development;

o Developing and funding interested First Nations communities to initiate the creation of First Nations regional education organizations; and

o Support the capacity of regional First Nation education organizations (now active in most provinces) to act as the catalysts in these developments, including a special emphasis on parental and community involvement.

b) Post-secondary Education: INAC, on behalf of the Government of Canada, approaches PSE almost exclusively through a decentralized funding model. Funding assistance for First Nations and Inuit students, in the order of $305 million annually, is, for the most part, allocated at the level of individual communities. While this approach has seen the increase in Aboriginal PSE graduates from 200 to 30,000, there are pressing questions about the consistency of allocation methods and about the accountability of results for money spent. As well, the almost singular

focus on funding has meant that other important questions, such as Aboriginal student retention and transition to the labour force, 113: received less concerted attention.

Recommendation: The Government of Canada develops a more comprehensive and integrated approach to Aboriginal PSE, one that moves beyond a sole focus on funding to a broader range of policy approaches and models,. 1shis renewal of Canada's Aboriginal PSI policy would be conducted in a partnership model with Aboriginal organizations and communities and with Aboriginal and non-Aboriginal institutions of higher educations. Key activities could include:

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o A thorough policy review of PSE, involving the Government of Canada and its partners is urgently required, so that the architecture of a new, more effective. efficient and accountable approach to all key aspects of the Aboriginal NE experience can be put in place;

o In a manner somewhat parallel to the suggested approach to K-12 reform, this policy approach will generate new models for addressing the opportunities and challenges experienced by Aboriginal PSE students;

o Related initiatives could include working with post secondary institutions to support the provision of culturally sensitive career and student support services to improve access and success of Aboriginal learners, for example, a PSE Partnership and Outreach Fund which would provide resources to First Nations regional education organizations to partner with PSE institutions to develop proposals for tutorial, guidance and counselling services for Aboriginal learners.

2. Embedding ECD. K-12 and PSE models within the larger concept of Aboriginal lifelong learning.

The concept of Aboriginal lifelong learning has been developed as a more integrated approach to Aboriginal education which is based on the recognition of multiple linkages between educational achievement inside the classroom and key interventions in child and youth development outside the classroom, either in the family or the community.

The gains in educational achievement that can be had from reforming the K-12 delivery system, moving from individual schools to some form of school systems, will be undercut to the extent that young Aboriginal children arrive at school not ready to learn due to issues such as fetal alcohol spectrum disorders. This speaks to the need for a coordinated, integrated, and consolidated approach to federal policy and program development and service delivery of early childhood development, First Nations Child and Family Services, and K-12 education. Similarly, research shows that the transition. from high school to institutions of PSE is often a precarious one for many Aboriginal students, who required culturally sensitive support, and counselling. The same can be said for subsequent retention and completion of degrees.

a) Priority - develop a streamlined, single window approach to Earlv Childhood Development "ECD) and K- 12.

This approach would target Aboriginal communities with the following initiatives:

o Short term actions including an infrastructure initiative to build early childhood development. facilities in new on-reserve schools

o Development of an Innovation Fund to be used to efficiently address overarching needs across the ECD/K-12 continuum (e,g. at risk strategy that links child and maternal health, violence prevention, suicide prevention, and drug awareness; special needs training for practitioners and para-professionals that covers ECD and K- I 2)4

o Engaging provinces/territories on potential policy development and service &Li\ et y coordination and harmonization of Aboriginal 'lifelong learning services and programs, could include federal participation in relevant multilateral processes such as the provincial/territorial Council of Ministers of Education, Canada (CMEC) itat.1 the federal provincial/territorial- Aboriginal process.

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o Expansion of early childhood programs, including: increased child and maternal health services (e.g., FAS/FAE awareness); providing access to Aboriginal Head Start and/or First Nations and Inuit Health Care; and engaging provinces/territories in a share of new hinds, with accountability conditions attached, for a national day care strategy for Metis and off-reserve Aboriginal children.

b) Priority - develop Transition and Retention Programs K-12 to PSE. and PSE to Labour Force For On- and Off-Reserve Aboriginal Students.

Aboriginal students and directly relevant studies continually underscore the challenges and difficulties that beset eyen the most motivated of Aboriginal students as they negotiate the often challenging transitions from high school to PSE, from the start to the finish of PSE, and from education, at whatever level, to the labour force.

The concept of Aboriginal lifelong learning helps generate an integrated set of initiatives that will address these various developmental and transitional challenges. Priority initiatives include the following:

o Establishment of an Aboriginal educational transition fund to enable governments, private and public sector, learning institutions and Aboriginal communities to implement programs for Aboriginal students in order to increase K-12 and PSE retention and completion, e.g. magnet schools, stay-in-school initiatives, math and science camps, youth leadership camps, role model programs, distance education, vocational training.

o Targeted programs to address transition from high school to PSE and/or the labour force, e.g. cooperative education and internship programs, guidance counselling, access to child care. Elders, tutoring, mentorship.

o Development of an Aboriginal literacy and essential skills program that will complement the Aboriginal Human Resources Development Strategy and include concrete ways to link income assistance clients to labour market training opportunities.


Objectives of the sectoral session could include:

o joint identification of priorities in each area of lifelong learning and for each group (First Nation, Metis and Inuit);

o consensus on an integrated systems approach to lifelong learning programming and service delivery;

o development of a joint action plan with Aboriginal and provincial/territorial partners; and o agreement on the roles and responsibilities of the various partners (this could include. for example, post-secondary education instilutitins).

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HOUSING

Context

There is a substantial housing backlog on reserves; in 2001, 22.5% of households had inadequate housing (housing that requires major repairs) and 10% of households were living in crowded conditions. Off-reserve, close to 25% of Aboriginal households were experiencing problems with affordable housing and were in core housing need compared with 16% of non-Aboriginal households.

The federal government funds housing on-reserve while the provision of social housing off-reserve is primarily the responsibility of the provincial/territorial government (pursuant to the devolution to provinces of the administration of social housing in the Mid-1990's). In-recent years, the federal government has made some investments in housing off-reserve, including the Affordable Housing Initiative and the National Homeless Initiative. However, only a small portion of these funds are targeted to Aboriginal households.

Major issues on-reserve include a shortage of units, a rate of renovation of existing units that lags behind repair needs, overcrowding (with the risks to health that can result), sub-standard quality and lack of capacity in some Aboriginal communities to manage housing. Major challenges in addressing the problems include the higher construction and material costs in remote communities and a system of land tenure on-reserve where title is held by the Crown and a householder's legal interest is a leasehold or a right of possession. The land tenure system makes

it difficult to obtain financing and may also inhibit the development of market conditions. Apart from the land tenure issue, the Inuit experience similar problems. However, the development of housing markets is inhibited in Inuit communities in many cases because they are both small and remote.

A major problem off-reserve is the lack of affordable, adequate housing. Major challenges in addressing this problem include intergovernmental disputes over responsibility (provincial and territorial governments take the view that special measures to address Aboriginal housing problems are fully the federal government's responsibility), and high residential mobility.

In determining housing needs, it is important to keep in mind that many Aboriginal households include more than one generation as well as extended family members, and that Aboriginal people generally have lower average incomes and home ownership rates. This influences the design and size requirements for Aboriginal housing and gives rise to a higher demand for low-cost, rental housing. It is also important to note that socio-economic factors, such as lower income levels and lower educational and skills level achievement among Aboriginal people as compared with other Canadians, is a large part of the challenge. These factors have a direct impact on housing affordability and sustainability of results.


Four priorities are proposed for Aboriginal housing (on and off-reserve)

o increasing the supply of and access to of housing,

o improving the adequacy of housing;

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o increasing the capacity of Aboriginal organizations, institutions and individuals to manage housing in their communities; and

o contributing to the prevention of and reducing homelessness.

It is suggested that immediate action is needed in order to halt the acceleration of the housing problem as the backlog will continue to grow if the current rate of investment is continued. In the medium term, the focus would be on reducing the backlog. Among other things, this will require incremental financial investment in housing, both in terms of new stock and accelerating the rate of repair/renovation of existing stock. At the same time, initiatives would be undertaken which would be targeted at ensuring the sustainability of affordable, adequate housing for Aboriginal people. These initiatives would include: improving access to capital and implementing innovative land tenure arrangements on reserve, facilitating access to market housing for off-reserve Aboriginal people, looking at ways to foster market-like conditions in communities where these are largely absent, supporting individual and community capacity development in Aboriginal communities so that they can design and implement their own solutions, and enhancing the system of supports for those at risk for homelessness.

The early and sustained involvement of Aboriginal organizations at the national, regional and local levels is critical to making progress. Engaging provinces, territories and municipal governments and others such as the private sector as stronger partners is also key to long-term success, particularly in meeting needs of Aboriginal people off-reserve.


It is hoped that in the sectoral session could achieve agreement on:

o long and short-term priorities for housing for First Nations, Inuit and Metis;

o immediate steps; and

o long-term objectives, how to achieve them and measures/indicators of progress.

ECONOMIC OPPORTUNITIES

Context

Regardless of whether Aboriginal economic development involves participation in regional economies or the development and growth of an Aboriginal community-based economy, most, if not all, of the following pre-conditions must exist in varying degrees:

o the presence Of a skilled, capable and motivated workforce;

o sound and reliable physical infrastructure;

o access to lands and natural resources,

o the development dissemination and market application of knowledge and technology

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o a.system and environment that supports enterprise development;

o the locale must hive a sufficient quality of life to attract people;

o fiscal stability; and

o strong and accountable governance structures and institutions.

In many cases for Aboriginal people, there are significant barriers to meeting the pre-conditions, although the existence, number and strength of barriers vary from community to community. The key to success is removing barriers, supporting the pre-conditions for economic development through a flexible and responsive approach to addressing community or individual needs and goals. However, in adopting this approach, it must be acknowledged that not every individual or community can achieve and enjoy similar outcomes or success. The federal government would work to assist communities and individuals where possible, and improve overall outcomes. As

community circumstances change, federal efforts should reflect an appropriate balance between community and individual level investments.

The federal government has a fairly comprehensive range of programming devoted to facilitating Aboriginal economic development, some of which is targeted at Aboriginal people in general and some which is directed at reserve-based First Nations communities. These programs are spread across many departments and do not always work coherently together (often because the departments involved do not have a common platform for their programs and services). And while federal programming in this area is not well integrated, there are some examples where joint initiatives are taking place, but more needs to be done to improve or increase integration.

Provincial/territorial interest in Aboriginal economic development has grown but tends to look to the federal government to take the lead role. This suggests that additional attention he given to securing deeper provincial/territorial involvement on a sustained and integrated basis.


It is proposed that a cohesive Aboriginal economic development framework be developed that would effectively re-orient policy and program development away from the traditional proiect-bv- proiect approach, and instead focus on the establishment of the pre-conditions referred to above. The foccus would be on building, in conjunction with Aboriginal, provincial/territorial, private sector and other partners, sustainable economies and/or sustainable participation in regional economies.

Development of the framework would involve a number of key directions, including:

o re-examination of federal activities. As the federal government continues to transform its relationship with Aboriginal people, it must get its house in order by establishing coherency among federal policies and programs, evaluating the role of Aboriginal economic development institutions, filling gaps and eliminating duplication and developing sound performance measures, and working more closely with provincial and municipal governments to enhance complementarity and coordination. Options and models to achieve this could range from

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improving existing interdepartmental coordination mechanisms to significant machinery changes.

o re-examine federal investments in organizations and institutions outside of the government. At present, in Canada, there are around 600 institutions and associations that are involved in supporting Aboriginal economic development from a wide range of activities and perspectives. Federal investment in these needs to be re-examined to encourage greater aggregations, synergies, and efficiencies, and also to support a more coherent and holistic approach to economic development.

These two elements would also provide the basis for integrating economic development program delivery mechanisms to communities and individuals. Integration of federal government activities would enable it to respond to Aboriginal communities in more timely and effective manner. This would better enable Aboriginal people and communities to undertake comprehensive planning with respect to economic development, allowing for increased participation in broader community and regional economies.


It is hoped that sectoral session could achieve:

o a common understanding of the pre-conditions for economic development and the barriers that now exist;

o identification of early actions (within next two years) that can and should be taken to begin to lay the foundation (facilitate the establishment of the pre-conditions) for economic development; and

o agreement to begin joint work on an Aboriginal economic development framework (one that is flexible and can address the unique needs of regions, communities and individuals).

ACCOUNTING FOR RESULTS

Context

There is broad consensus that we need to achieve better results from efforts and money we currently expend on programming intended to improve the quality of life of Aboriginal people. it is recognized that while some additional investments may need to be made in key areas, spending more money is not the only solution to problems. Defining the intended results and developing consistent measures h which progress and performance can be tracked are important. Experience suggests that improved results are often achieved through regular, smarter reporting on progress (reporting on outcomes not merely outputs), using measurement of progress to make any necessary amendments or course corrections to existing efforts, and ensuring that all parties involved in the effort to improve the quality of life share in the responsibility for achieving the desired outcomes, The development of an Aboriginal Report Card is the first step.

Being accountable for results is a hallmark of modern democratic government, It the context of Aboriginal Policy in Canada., four accountability relationships must be in play: federal/provincial/territorial governments and all Canadians; federal, provincial government/territorial ….

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….governments and Aboriginal peoples; federal/provincial/territorial governments and Aboriginal organizations and governments (given that in a number of areas these bodies administer or deliver federal/provincial/territorial programs and services to Aboriginal people), and Aboriginal leaders to their communities. Accountability does not rest solely with one government or set of political leaders. In order to be effective, all five accountability relationships must be based on the common principles of transparency, shared responsibility and ownership, shared Values of integrity and trust, clear roles and responsibilities, clear performance expectations balanced with capacity, credible reporting and performance review.

Other matters requiring attention include the heavy reporting burden that exists today (especially problematic as not all of the reporting is meaningful), the need to fill gaps in data and to have common data, the role of transparent reporting and accountability in enhancing effective democracy.


It is proposed that the federal government work with Aboriginal partners and provincial and territorial governments to develop an Aboriginal Report Card (ARC) to track and publicly report on a set of agreed upon outcomes over time. By measuring performance in this manner, stakeholders (Aboriginal people, governments, Canadians) will be able to monitor progress toward improving socio-economic outcomes of Aboriginal people. Such action will also follow up on the commitment of the Prime Minister for "a manageable and transparent Aboriginal Report Card to set clear targets for achievement and measure our progress and success in getting there".

While the ultimate form of an ARC will be developed in collaboration with Aboriginal and provincial/territorial partners, it could be a high level multi- jurisdictional report that outlines a set number of socio-economic results to achieve and reports on indicators to track and measure progress towards the desired results. It might incorporate the following elements:

o Shared outcomes: all partners (federal provincial/territorial and Aboriginal) agree on outcomes to track over time, e.g., health status of Aboriginal people equivalent to that of other Canadians:

o Shared indicators: partners agree on indicators that could be used to track results, eg, life expectancy as an indicator of health status;

o Shared data: partners agree to share data with each other. e.g., provincial/territorial vital statistics aggregated to arrive at national data (or dis-aggregated to provide community, level data);

o Coordination of reporting: parties could report together or separately as long as there is agreement to prevent duplication, e.g., provinces and territories could choose to develop separate reports on the Aboriginal population in their jurisdiction, or distinct Aboriginal peoples may choose to develop separate reports, but all could draw on common data sources, and

o Reporting in a range of thematic areas: the thematic areas of Health, Life Long Learning, Economic Opportunity, Negotiations and Housing are suggested by the organizational structure of the Roundtable Follow-up sessions, Annual reports could focus on different thematic areas in different years, or different thematic areas in different jurisdictions, eg, Alberta could report ….

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….one year on educational achievement of Aboriginal people in that province; the federal government could report on economic development on reserves in the same year.

Past experience within the federal government suggests that creating a report card is a time consuming. and iterative process (the health Report Card took two years from agreement on a set of outcomes at the 2000 FMM to .a report on indicators in September 2002). Much further work is required before agreement is reached on the content of an ARC."


Goals for the sectoral session could include:

o a shared understanding of performance measurement concepts and best practices, and how a report card can express measurement of results in a meaningful way;

o a start on defining important elements or features to include in the ARC;

o agreement on a process to continue working on an ARC; and

o a start on a list of possible high level results or outcomes to track over time in an ARC, as developed at the other five sectoral sessions.

NEGOTIATIONS

Context

Making faster progress on land claims and self-government negotiations depends on whether the negotiations process and outcomes are perceived as satisfactory, particularly by Aboriginal groups. This, in turn, is linked to the larger issue of how Canada should address Aboriginal and treaty rights, consistent with their recognition and affirmation in section 35 of the Constitution Act, 1982. The Supreme Court of Canada (SCC) has stated that the basic purpose of section 35 is to reconcile the prior existence of Aboriginal societies with the sovereignty of the Crown. This reconciliation entails a recognition that Aboriginal peoples, as the original inhabitants of Canada, have distinctive rights flowing from their unique contribution to Canada, including rights preserving their distinctive societies, practices and customs, The Courts have provided guidance regarding the recognition of section 35 rights and how they should be reconciled with the sovereignty of the Crown and the rights of other Canadians. The concept of reconciliation has

been endorsed and articulated by the Royal Commission on Aboriginal Peoples and most Aboriginal groups.

Evolving constitutional law and the changing public and economic environment is challenging governments and Aboriginal peoples to develop new approaches for addressing Aboriginal and treaty rights. For example, in relation to comprehensive claims, there is pressure for a wider range of settlement options or approaches based on recognition and co-existence of rights as opposed to the surrender or final settlement of the rights for all time or the setting aside of rights issues to focus solely on practical arrangements. New approaches to Self-government are also required to address issues of governance capacity, financial sustainability, intergovernmental relationships and the need for: streamlined ways for Aboriginal groups to take up self-government powers. Historic treaty….

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….First Nations are pressing the government to engage in processes to make treaties more meaningful in the today's context, and to link them to self-government. The recognition of Metis Aboriginal rights in the SCC Powley decision has created the need to develop approaches to address Metis rights.


The development of a framework of overarching principles for addressing Aboriginal and treaty rights consistent with section 35 of the Constitution Act, 1982 and the constitutional objective of promoting the reconciliation of Aboriginal and treaty rights with the sovereignty of the Crown and the rights of other Canadians. Such a framework would suggest a number of new policy directions, which can be characterized in summary form as follows:

o Government approaches to resolution of claimed Aboriginal land rights would be based on co-existence and the establishment of an ongoing relationship providing predictability and clarity for use and management of lands and resources, rather than necessarily a final, comprehensive definition of all Aboriginal land rights for all time;

o where government proposes to permit land and resources use in areas subject to Aboriginal rights claims which appear valid, the Crown would act-commit to acting honourably on the basis that the rights likely exists (consult with Aboriginal people and accommodate their legal interests);

o the government would undertake to specifically recognize the inherent right of self-government in relation to particular Aboriginal groups and establish ways of facilitating access by Aboriginal groups to core, standardized powers, At the same time, the government would require that core governance, Aboriginal government constitutions and capacity matters be addressed in a systematic manner at the beginning of the negotiations process; develop criteria (e.g. in relation to critical mass) for negotiating certain matters, and take a more standardized. formula driven approach to financial

transfers which would be linked to principles respecting fiscal equity, harmonization and government accountability;

o on treaty issues, the government would be proactive and articulate a set of principles (e.g. through a proposed Act of Parliament) for addressing treaty interpretation and implementation and other treaty matters; and

o the government would pursue with Metis groups and provinces/territories the development of a framework for addressing.Metis Aboriginal rights, criteria to recognize Metis governments, and the negotiation of Metis self-government with provincial/territorial governments.

In all cases, the intent is to be proactive rather than leave major disputes about section 35 rights for the courts to resolve, and to define key aspects of the Crown - Aboriginal peoples relationship through cooperative and conciliatory approaches, as opposed to adversarial means, as much as possible.

It should be noted that all of the above will require provincial/territorial acceptance as in most cases, resolving issues related to claims and self-government is done with their involvement.

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A framework of guiding principles that speak to the constitutional objective of the reconciliation of Aboriginal and treaty rights would be beneficial for guiding policy renewal along the lines set out above. Perhaps more importantly, it would serve to affirm the government's intention to renew its relationship with Aboriginal peoples and to respect their unique place in Canadian society. Reconciliation must be grounded in the principles of mutual recognition, mutual respect, mutual benefit and mutual responsibility as informed by constitutional law. The principles would reaffirm the government's commitment to act honourably in this regard.

It is therefore proposed that the sectoral session be used as an opportunity to seek some consensus of a framework of principles for addressing Aboriginal and treaty rights, or at least lay the groundwork for a consultative process for developing the framework.

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