The Modern Treaty Era
Recall that the Supreme Court’s decision in R. v. Calder (1973) verified that Aboriginal Title exists, launching an era of land claims over lands that had not been officially ceded by Treaty. The Court did not, however, specify how Aboriginal Title would be determined.
In its 1997 Delgamuukw v. BC decision, the Supreme Court specified that Aboriginal Title is a communal right of any group that occupied the land in question prior to European contact. Where that cannot be proven, the group must have been occupying these lands continuously since then. Aboriginal Title gives exclusive use and occupation rights, but the land can only be used in a way the entire community approves; it also cannot be sold except to the Crown.
Aboriginal Title is affirmed for Indigenous groups who occupied the land in question before European contact. Bonita Lawrence (2004, p.4) has noted that most land claims in the Americas depend on whether the Indigenous group can prove its primordiality – its existence on the land from time immemorial. The land claims, once settled, also require that primordial traditions, such as collective ownership and traditional (vs. commercial) hunting and gathering, continue to be practiced. Thus, Indigenous economies are locked into their seventeenth century forms.
The Supreme Court ruling R. v. Van der Peet (1996) follows this pattern by defining an Aboriginal Right as a traditional, pre-contact practice. R. v. Marshall (1999) determines that First Nations who signed Peace and Friendship Treaties in Atlantic Canada have the right to earn a “moderate livelihood” from fishing, but not the right to large-scale commercial fishing.
This emphasis on primordiality does not recognize the right or the need of Indigenous people to migrate and adapt in response to economic pressures and opportunities, many of which pressures have been forced upon them. It also weakens or eliminates Indigenous claims to urban areas, since Indigenous occupation of these areas has been interrupted.
The High Cost of Land Claims:
Recall that not until 1974, after the R. v. Calder decision, was a federal government office opened to handle specific claims (treaty-related complaints) and land claims (regarding areas of land not covered by treaty). Until 2006 that Office operated with the government being both the Accused and the Judge. Moreover, a Senate report found the specific claims process to be “complicated, time-consuming, expensive, adversarial, and legalistic.” Specific claims, of which there were 800 outstanding, took an average of 13 years to resolve. It is likely that land claims moved even more slowly.
Despite a new resolution in 2007, the Auditor General (2016) has found that things have not improved since then. In fact, new procedural barriers have been erected. Information sharing between the government and First Nations is poor, and funding to First Nations to help them prepare and negotiate their specific claims has been reduced. Most years, more new claims are filed than are resolved.
The Duty to Consult:
Since land rights are difficult and costly to settle, it is fortunate that a more general Duty to Consult has been established.
In its Haida Nation v. British Columbia (2004) ruling, the Supreme Court dealt with the issue of British Columbia granting forestry licenses in the ancestral lands of the Haida. The Haida worried that the old growth forests would be “irretrievably despoiled” before their Aboriginal Title claim was ever resolved. The ruling inaugurated the concept of the Duty to Consult on the part of the federal or provincial government.
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. 
…the duty to consult and accommodate, as discussed above, flows from the Crown’s assumption of sovereignty over lands and resources formerly held by the Aboriginal group.
This theory provides no support for an obligation on third parties to consult or accommodate…the ultimate legal responsibility for consultation and accommodation rests with the Crown. 
This last sentence tells us that the federal or provincial government is responsible for the quality of the consultation and accommodation of Indigenous communities who are pursuing land claims. The government cannot just accept whatever a company does in the way of consulting or accommodating an Indigenous community.
Later, in 2014, the Supreme Court of Canada granted Aboriginal Title to the Tsilhqot’in Nation for 1900 square kilometres, roughly five percent of the territory claimed. Tsilhqot’in Nation had taken British Columbia to court over forestry licenses granted to non-Tsilhqot’in companies. The Court ruled that the Tsilhqot’in people, who like most mainland British Columbia Indigenous people never made a treaty with any government, have the right to actively manage the lands of which they traditionally made “regular and exclusive use”.
Bill Gallagher and Toby Heaps, each writing in Corporate Knights (Spring 2019), explain that more and more land is coming under Indigenous control due to successful court challenges. Companies wishing to extract resources on traditionally indigenous lands are having to negotiate Impact Benefit Agreements with local communities.
Toby Heaps writes,
“The new rule of business in Canada’s resource economy is: No Indigenous buy-in, no dice. Buy-in doesn’t come cheap. It means a radical departure from business as usual practices. That means more than just a few token jobs. The table stakes are meaningful equity ownership, control through executive and governance bodies, employment, involvement in environmental planning and, critically, sourcing. Canadian businesses and governments need to be much better partners and customers of Indigenous businesses.”
Sourcing means buying goods and services from the Indigenous community where possible.
The Duty to Consult is part of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada signed in 2016. Article 32 section 2 reads:
“States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
This appears to give Indigenous peoples veto power over development of their lands.
This ruling encouraged many First Nations to reinvigorate their land claim efforts. The legal process would be slow and costly, however.
Benefits from Land Claims Agreements:
A 2015 study by Fernando Aragón showed that comprehensive land agreements enacted by 2005 in British Columbia, Yukon, and the North West Territories led to an increase in mining agreements, likely because of the clarification as to who had rights over what. In turn, private sector wages increased; income, particularly labour income, rose in all occupations except public sector jobs. House prices increased.
K. Pendakur and R. Pendakur (2017) updated this inquiry to 2010 and extended it to all of Canada. They too found a positive effect on income, mostly labour income, from comprehensive land claims agreements, whether or not a self-government agreement is included. They also found a small increase in income for communities participating in both the First Nations Financial Management Act and the First Nations Land Management Act. Aboriginal household income rose about 7% in communities with the aforementioned agreements, and income inequality appeared to be falling. However, income rose twice as much in the non-Aboriginal households included in the same Census subdivisions.
Pendakur and Pendakur also found that self-government agreements without comprehensive land claims agreements were not effective at raising income.
Expanding Reserves without using the Land Claims process
In 1972, the federal government created a process for adding lands to reserve. This process is now known as Additions to Reserve (ATR). Through ATR, First Nations can apply for new land attached to or detached from their existing reserve(s). Many of the requests are classified as Treaty Land Entitlements, because they are alleged to arise from treaty agreements that were not properly fulfilled.
According to the National Indigenous Economic Development Board (2019, p. 84), there are 1,300 ATR applications outstanding, eighty percent of which relate to the Crown’s legal obligations towards treaty partners.
Some of the new reserves will be located in urban settings. The first urban reserves were created in Saskatchewan in the early 1980s. The Saskatchewan Treaty Land Entitlement Framework Agreement (1992) greatly accelerated this trend by formalizing procedures for compensating First Nations who were never given all the reserve acres promised in Treaty. It also gives First Nations land in respect of population growth.
When urban reserves are acquired, they are purchased by Bands, not expropriated by government. As Flanagan (2019) explains, not only do the current owners of the land have to agree to the sale, but municipalities have to agree to zoning, infrastructure, property taxes (if any), and fees (if any) for services provided by the municipality.
Today, there are 100 urban reserves including 54 in Saskatchewan. Some First Nations own more than one urban reserve. Most urban reserves are intended to be commercial centres, and include ventures such as gas stations, convenience stores, office space, shopping centres, golf courses and casinos.
Comparing First Nations with and without urban reserves, Flanagan and Harding (2016) conclude that only those First Nations making active commercial use of their urban reserves have seen a noticeable improvement in Community Well-Being Index scores. These Bands were already better off to begin with – better prepared to do the work needed to get an urban reserve and to build businesses upon it.
There are two urban reserves in Winnipeg belonging to the Peguis whose history we briefly described in Chapter 10. The second reserve is receiving a tax break: for the first five years, Peguis will pay 20% less municipal tax than other Winnipeggers. The province will make up the difference to Winnipeg. Meanwhile Peguis taking up an unattractive site which it has refurbished and rented out.
In Chapter 28 we will discuss ways to promote business on land owned by Indigenous communities, particularly urban land. But first we’ll take a look at how Indigenous communities can use wilderness lands.
- Auditor General (2016). ↵