Aboriginal Land Claims A brief chronology Why land

Aboriginal Land Claims A brief chronology

Why land claims now after so many years? • Up until 1951, it was illegal for First Nations to take legal action against the government • There was no land claim process until a 1973 Supreme Court of Canada decision ruled on the issue of Aboriginal rights to land post-European settlement

Constitution of Canada 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect

The Canadian Constitution • The British North America Act of 1867 saw the Confederation of Canada • Section 91(24) states that Indians and lands reserved for Indians are a federal responsibility • The BNA Act was amended by the 1982 Constitution Act

Section 35 - 1982 Constitution Act • This updated Constitution “recognized and affirmed” Aboriginal and Treaty rights and placed these rights under Constitutional protection • Aboriginal and Treaty rights would now be protected by the supreme law of Canada

Six Nations possession of lands prior to Confederation • The Mitchell Maps of 1755 show the land that the Six Nations had control of prior to the 1763 Royal Proclamation • The Royal Proclamation was enacted to prevent fraudulent land dealings with Indian people. It outlined specific conditions that had to be met when dealing with Indian interests in lands

Six Nations Communities in Canada • Tyendinaga Mohawk Territory (east of Belleville) • Ohsweken (near Brantford, Hamilton) • Oneida (near Southwold, sw of London) • Wahta, (near Bala, n of Orillia) • Kahnawake, near Montreal, Quebec • Kanesetake, near Oka, Quebec • Akwesasne, near Cornwall • Several communities in the United States and one in Alberta

The American Revolution – 1775 -1783 • Although the Six Nations declared neutrality in the conflict, the Mohawk Valley, in what later became upstate New York, became a bloody battleground • The Mohawks had been military allies of the British in previous conflicts and ended up assisting the British in the revolutionary war

• In recognition of the losses of the Mohawks • during the American Revolution, British officials said that the Mohawks could settle on any of the unsettled land in the country Mohawk, Captain John Deserontyon, and Samuel Holland, Surveyor General of Upper Canada set off to Cataraqui (later Kingston) in 1783 to survey lands on the Bay of Quinte at the close of Revolutionary war that ended with the Treaty of Paris

A new life in the Bay of Quinte • The Bay of Quinte was a familiar place to the Mohawks as it was the birthplace of the Peacemaker, the man who brought the original five nations together, later six with the adoption of the Tuscaroras • A tract of land on the Bay of Quinte was selected and a sketch was drafted and deposited in England

• The Mohawks arrived on the Bay of Quinte on May 22, 1784. After arrival on the shores of the Bay of Quinte, Captain John (a Mohawk leader) was upset that Loyalists were settling on the Mohawk lands agreed upon by the sketch drafted the year before • He pressed the Upper Canada government formal recognition of the land, “a charter”, that would protect the land against further settler encroachment

Simcoe Deed/Treaty 3 &1/2 • April 1 st, 1793 • Recognized military alliance of Mohawks and others of • • • the Six Nations and set out a process to recompense for losses sustained during the American Revolution Set out terms for how lands will be held and outlined process for disposal of lands Wording of Simcoe Deed reiterates Royal Proclamation of 1763 Simcoe Deed is also catalogued as Treaty 3 &1/2 and, as a treaty, falls under the protection of the Constitution of Canada

Tyendinaga Mohawk Territory • As per the Simcoe Deed of 1793 a tract the size • • of a township, 12 miles wide by 13 miles deep was set aside, approximately 100, 000 acres Today 18, 000 acres remain due to land speculation by government, church, settlers, and others The Culbertson Tract, comprising 923. 4 acres is the only claim submitted by the Mohawks of the Bay of Quinte to date

Excerpts of the Simcoe Deed “…for the sole use and behoof of them and their Heirs for ever freely and clearly of and from all manner of Rents, Fines or Services whatsoever…” “…free and undisturbed possession…” “It is our Royal Will and Pleasure that no Transfer, Alienation, Conveyance, Sale, Gift, Exchange, Lease, Property or Possession shall at any time be had, made or given…”

Treaty 3 &1/2 continued… • The treaty also outlined a process to remove • trespassers from the land “…it shall and may be lawful for Us, our Heirs and Successors at any time to enter upon the Lands so occupied and possessed by any other Person or Persons other than the …Six Nations…and therefrom wholly to dispossess and evict and to resume the same…”

Some Facts about land claims • Many people ask why, after so many years, there are land claims today • Illegal for Indians to make a claim against the government until 1950 s • No land claim process until 1973 • No formal claim process until 1982 • Pre-Confederation claims were ignored until 1991

Culbertson Tract Claim • Once the pre-confederation bar was lifted in 1991, the claim was researched and submitted in 1995 • In 2003, Canada accepted the claim as a valid claim for negotiation under the terms of the 1982 Specific Claims Policy

Canada’s Approach to Claims • Canada has thus far chose to ignore Aboriginal • • and Treaty Rights with respect to land claim negotiations unless they are forced to recognize them by the Supreme Court Instead they create a “policy” to deal with their fiduciary duty toward treaties The approach is to offer Indians cash for an absolute extinguishment of their title

Outstanding Business – Specific Claims Policy in Canada 1) Lawful Obligation The government's policy on specific claims is that it will recognize claims by Indian bands which disclose an outstanding "lawful obligation", i. e. , an obligation derived from the law on the part of the federal government. A lawful obligation may arise in any of the following circumstances: • i) The non-fulfillment of a treaty or agreement between Indians • • • and the Crown. ii) A breach of an obligation arising out of the Indian Act or other statutes pertaining to Indians and the regulations thereunder. iii) A breach of an obligation arising out of government administration of Indian funds or other assets. iv) An illegal disposition of Indian land.

I own property within an area covered by a specific claim that relates to land. Will my property be taken away from me to settle the claim? No. Regardless of where your property is located, this will not happen. Private property is not on the negotiating table. The current ownership of land is not at issue when a claim is being negotiated under the Specific Claims Policy. Canada does not take away privately owned lands to settle any claims, nor are private property owners asked to sell their land unwillingly. If land changes hands after a settlement of a land claim, this can only happen on a willing-seller/willing-buyer basis. Source - Frequently Asked Questions About Specific Claims in Canada

Specific Claims Policy What the policy actually says!

What our treaty says • “…it shall and may be lawful for Us, our Heirs and Successors at any time to enter upon the Lands so occupied and possessed by any other Person or Persons other than the …Six Nations…and therefrom wholly to dispossess and evict and to resume the same…”

Senate Committee on Aboriginal Peoples Special Study on the Federal Specific Claims Process In December 2006 a report was released by the Standing Senate Committee who conducted an in-depth analysis of the federal government’s Specific Claims Policy. The report is entitled: NEGOTIATION OR CONFRONTATION: IT’S CANADA’S CHOICE *Report is available at http: //www. parl. gc. ca/39/1/parlbus/commbus/senate/Com-e/abore/rep-e/rep 05 dec 06 -e. pdf

Excerpt of findings • “In its study of Specific Claim, the Committee found the process to be fraught with delay and so ineffective as to be working to the detriment of the government’s stated objectives. ”

How big is this issue? • “About seventy per cent of the First nations in Canada have claims in the Specific Claims system. ” • 1, 337 Specific Claims have been filed since 1970 • In 26 years only 275 claims have been resolved

How long will it take to resolve claims in Canada? • Lawyer Jerome Slavik, an expert witness, suggests that at the current rate it could 90 years to settle outstanding Specific Claims if just 70 per cent of the more than 800 waiting claims were validated. • Bear in mind that this calculation is based on NO NEW CLAIMS SUBMITTED.

INAC vs. the Crown • Although treaties are agreements between nations, the Crown leaves it up to its Indian & Northern Affairs bureaucrats to negotiate • Bureaucrats are fixated on maximum departmental efficiency for least expenditure of money

Lack of faith in progress Legal practitioners who have extensive experience with SCB are doubtful of INAC’s ability to handle claims. Jerome Slavik, stated that DIAND is “organizationally and functionally incapable” of grouping claims to process them more efficiently. “You need a different organization to do it. ”

A new approach • Specific claims should be treated as a matter of national debt rather than discretionary funding • An independent claim body that removes Canada from the capacity of judge and jury • A negotiated approach rather than universally legislated

• University of Manitoba Law Professor Bryan Swartz suggests, “…moving out of the program spending box and recognizing (that resolving Specific Claims) is part of paying down the national debt. ”

Canada’s new approach to claims • Canada recently announced a new land claims • process involving the establishment of a tribunal that will have the authority to making binding decisions regarding claims, thus removing Canada as judge and jury against itself in land claims made by First Nations Only two recommendations of Senate committee report were implemented…well almost two

Problems with New Claims Process • Tribunal will be unilaterally appointed by Canada • • and it was announced that it would consist of six retired or presiding Superior Court judges Tribunal will not deal with claims that are valued over $150 -million, or claims that involve land or resources Tribunal will not hear claims that are based on Aboriginal or treaty rights or Aboriginal title even though Aboriginal and Treaty rights are protected under the Constitution

Ipperwash Inquiry Report • Following the 1995 OPP fatal shooting of • • Aboriginal protestor Dudley George at Ipperwash Provincial Park an official inquiry was held As a result of the inquiry, the Ipperwash Inquiry Report was released on May 30, 2007 The report contains 78 recommendations toward reconciliation of Aboriginal issues including land claims

Treaty Commission of Ontario • The Ipperwash Inquiry recommends that Ontario set up a treaty commission to deal with land claims within Ontario • Ontario’s involvement in land claims is key, under the Constitution, provinces have jurisdiction over property and civil rights and transportation

Joint Task Force • A joint task force has been established by Ontario to consult First Nations in the implementation of the Ipperwash Inquiry Report recommendations • The report is available at http: //www. ipperwashinquiry. ca/report/vol _1/index. html

Root of Aboriginal Conflicts • Lack of recognition by Canada and the provinces of Aboriginal title interests in Land Resources • Failure to restore land that was wrongfully taken • Natural Resource exploitation on lands where Aboriginal title and rights remain • Disturbance of Aboriginal Burial grounds

Aboriginal Conflicts • 1971 James Bay Cree Hydroelectric Project • 1990 Oka crisis • 1995 Gustafsen Lake • 1995 Ipperwash • 1999 Burnt Church • 2006 -present Caledonia • 2006 -present Culbertson Tract • And numerous others

Myths about Indigenous People • They don’t have jobs • They’re drunk and lazy • They don’t pay taxes • They get everything for free • Canadian taxpayers pay for Indians • Cowboy and Indian stereotypes • Uneducated and Uncivilized