Land is a central part of the cultures and worldviews of Indigenous peoples. However, most Indigenous communities lost access to and use of their traditional territories as a result of colonization.  For many Indigenous communities, being dispossessed of their land has impeded social and economic prosperity. At issue is the way that lands and resources have been “mismanaged, sold, [and] degraded, often while communities faced poverty and struggled to secure even the most basic necessities of life.”[1] Redress for historical injustices is a key element in advancing reconciliation; settling claims also provides benefits to Indigenous communities in relation to self-determination and economic development.

Over time, the federal government developed policies and processes to address injustices related to Canada’s breach of legal obligations under pre-1973 treaties and the way Canada managed First Nations funds and assets (specific claims). The federal government also developed policies and processes to deal with Indigenous land rights that were not addressed in past treaties or other legal means (comprehensive land claims).

The House of Commons Standing Committee on Indigenous and Northern Affairs (the Committee) believes that getting the claims process right is an important part of reconciliation. As such, the Committee agreed in the spring of 2017 to study the current processes for settling specific and comprehensive claims, as well as to identify challenges, benefits and outcomes for Indigenous communities. The Committee is aware that these issues have been studied before, and that Indigenous groups have repeatedly voiced their concerns and recommended reforms, often leading to little or no change.

During its study, the Committee heard that Indigenous groups across Canada are frustrated and find the current claims processes expensive, time-consuming and adversarial. It takes on average 18 years to settle a comprehensive land claim[2]; the process is fraught with delays and creates a significant financial burden for Indigenous communities. Further, Indigenous communities indicated that even when an agreement is reached, Canada does not always fulfill its treaty obligations.

With regard to specific claims, the Committee heard that the process is adversarial, does not take into account Indigenous cultures, values and laws, lacks independence and transparency and that funding for research and participation in the process is insufficient and unpredictable. Indigenous communities further expressed concerns over the very premise of the specific claims process, stating that it is “re-victimizing those who were wronged by Canada’s past actions.”[3]

While some witnesses were critical of the claims processes, others acknowledged that there was often some creativity at the negotiation table[4] to resolve claims and that “Canada in recent years has demonstrated that it is prepared to be flexible and creative in addressing the interests of Indigenous groups outside of the treaty process.”[5] Nonetheless, it is clear to the Committee that in its current form, the government’s policies and processes prevent Indigenous communities from achieving a fair resolution of their claims. Further, the Committee found that the current processes cannot efficiently achieve the goals set by the federal government, as evidenced by the high number of unresolved claims.

The starting point for any reframing of Canada’s specific and comprehensive land claims policies must be for equal partners to acknowledge Aboriginal rights, and to focus on rebuilding trust.  As such, the Committee makes several recommendations, and recommends that their implementation  be guided by the Principles and Minimum Standards set out in the United Nations Declaration on the Rights of Indigenous Peoples (Recommendation 17). These recommendations include that Canada:

• Adopt a holistic and flexible approach rooted in the recognition of rights for the resolution of comprehensive claims (Recommendation 1);
• Make  information on Recognition of Rights Tables publicly available and report to Parliament on their progress (Recommendation 2);
• Recognize that land claims agreements are living documents (Recommendation 3);
• Work in partnership with Indigenous peoples to reform the funding models for the specific claims, comprehensive claims, Treaty Land Entitlement and Additions to Reserve processes, including the forgiveness of all outstanding loans (Recommendations 4, 5 and 6);
• Make dispute resolution mechanisms available to Indigenous communities throughout the negotiation of comprehensive land claims (Recommendation 7);
• Develop processes and create an independent office to monitor the implementation of comprehensive land claims and specific claims agreements, and support Indigenous community-led data collection (Recommendations 8 and 9);
• Reform the specific claims policy and amend the Specific Claims Tribunal Act to, among other matters, incorporate First Nations cultures, knowledge and language where possible (Recommendations 10 and 11);
• Develop a funding framework that provides sufficient funding for the research and development of specific claims (Recommendation 12);
• Improve the Treaty Land Entitlement and Additions to Reserve processes (Recommendations 13 and 14);
• Develop an improved process for educating and engaging third parties and local communities members at every stage of the land claims processes (Recommendation 15);
• Develop a mandatory education and training program for officials working on claims and launch a public education campaign for all Canadians. (Recommendation 16).

While true reconciliation requires more than the actions outlined in this report, the Committee hopes that these recommendations provide guidance to the federal government in its efforts to reform the specific and comprehensive land claims processes in partnership with Indigenous peoples. The Committee further hopes that these recommendations contribute not only to a renewal of claims policies and processes, but to a renewed relationship with Indigenous peoples.