Local Journalism Initiative Reporter
Reforms are needed in broken systems that are cumbersome to navigate and too slow to be realized when it comes to land back, said chiefs at last week’s annual general assembly for the Assembly of First Nations (AFN) in Halifax.
Resolutions adopted in that assembly focused on the federal government working with First Nations to reform the Additions to Reserve land process and to develop a framework for a Specific Claims process that recognizes Indigenous laws, legal orders and systems of land tenure.
“This resolution is about land back. It’s about being in line with the United Nations Declaration (on the Rights of Indigenous Peoples),” said Madawaska Maliseet First Nation Chief Patricia Bernard about the Additions to Reserve reform.
“It’s about getting land back in a process that’s not full of hula hoops and…things to jump through,” she said.
It was a sentiment later echoed by Crown-Indigenous Minister Marc Miller when he spoke to chiefs on July 13, the final day of the three-day assembly.
“It is a broken system and it's something that needs to be fixed,” said Miller. “It is probably the poorest form of getting land back to your communities and control over those.”
Miller made a similar comment the previous year at a chiefs’ assembly.
The existing system often sees First Nations unable to acquire necessary lands as there is no mechanism to make lands available for purchase, even when treaty or settlement agreements provide cash for purchase of land.
Difficulties also arise when it comes to purchasing land from third parties, pointed out Chief John Martin of Gesgapegiag (Quebec). He said private landowners will often triple or quadruple the price of their land because it is First Nations that require it.
“I really think that’s criminal,” he said. “I think that there's an obligation here on the part of the government to control that and have some kind of mechanism that's put in place to address that because it's really insane.”
Since 2019, Crown-Indigenous Relations has had a mandate to carry out Additions to Reserve reform. Since 2012, the AFN has had a number of resolutions in place pushing for that reform.
The newest resolution approved by chiefs last week, Returning First Nations Lands through Additions to Reserve Reform, directed the AFN to call on Canada to co-develop with First Nations a “clear, effective, and transparent process to restore, reacquire, and/or remedy the historic dispossession of reserve lands, including fully implementing outstanding legal obligations to create or add to existing reserves or other land tenure systems.”
Chiefs also passed a resolution to reform the Specific Claims process by recognizing and implementing Indigenous law, legal orders and dispute resolution mechanisms.
Specific claims are claims made by First Nations against Canada for non-fulfillment of a historic treaty, its mismanagement of lands or assets, or the Crown’s failure to fulfill its lawful obligations.
The resolution, Recognize First Nations Laws and Legal Orders in the Specific Claim Process, provides the bridge for the extensive overhaul of the Specific Claims process in which the AFN Chiefs Committee on Lands, Territories and Resources and the federal government have been engaged.
The present Specific Claims process has been characterized by First Nations as a “conflict of interest” and for years First Nations have called for its elimination, said Gull Bay First Nation Chief Wilfred King, who is co-chair of the chiefs committee.
As it stands now, the federal government decides whether Canada is at fault in its actions and to determine the repercussions. Canada has exclusive authority to assess whether it has breached a lawful obligation, to formulate policies that direct the funding of specific claims for development, and to determine whether claims will be negotiated.
“While we have made considerable progress,” King said, “these goals will only be achieved with the full recognition of Indigenous laws and legal orders within the reform process.”
The revamp proposes the creation of an Independent Centre for the Resolution of Specific Claims (ICRSC), a “fundamental feature” of which, says the proposal, will be to support recognition of the laws, legal orders and dispute recognition mechanisms as expressed by the participating First Nations.
The centre would also incorporate the adjudicative function of the Specific Claims Tribunal with a commission that would provide First Nations with a venue for facilitated negotiations.
Chiefs-in-assembly also continued a battle that gained some traction earlier this year when Justice Minister David Lametti said he would commit to looking at the 1930 Natural Resources Transfer Act (NRTA).
Lametti’s comment was made at the April special chiefs assembly when he was asked to rescind the NRTA. His answer sparked a backlash from the premiers of Manitoba, Saskatchewan and Alberta, whose provinces are covered by those acts.
That led to Prime Minister Justin Trudeau reassuring the premiers that Canada would not be revisiting the legislation, which saw the federal government turn over to the Prairie provinces the jurisdiction that Canada had exercised over the Crown lands and natural resources of those regions.
However, Trudeau’s words have not dampened chiefs’ resolve to continue the fight and their assertion that NRTA breaches the treaty and constitutional rights of First Nations.
“The land is our land. We never gave up our land. We know since the settlers, colonizers arrived on Turtle Island, their initiative was to control the Indians and acquire our lands,” said Black River First Nation Chief Sheldon Kent.
Black River First Nation is signatory to Treaty 5. The largest number of First Nations signed that treaty and northern adhesions in what is now Manitoba.
Grand Chief Brian Hardlotte of the Prince Albert Grand Council in Saskatchewan called the NRTA a “piece of discriminatory legislation.” He also pointed out that western First Nations have “been working on” the NRTA since 2011 through national conferences.
The AFN has passed numerous resolutions since 2016 asserting inherent and treaty rights to natural resources and declaring the NRTA to be in violation.
Repeal or Amend Legislation that Breaches First Nations Inherent and Treaties Rights to Natural Resources is now the latest resolution, this one broadening the focus to include more than the NRTA.
The resolution directs the AFN to undertake research and identify legislation or regulations where the federal government has delegated jurisdiction to provinces and territories over Crown lands and natural resources that “restrict or extinguish the inherent, Treaty and constitutional rights of First Nations.”
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