The Canadian government primarily recognizes two types of Aboriginal land claims: comprehensive land claims and specific land claims. Comprehensive claims include the claims of First Nations who did not sign treaties or agreements extinguishing their aboriginal interests, while specific claims focus on lands that were lost, the misadministration of their lands or assets or the non-fulfillment of treaties.
Treaty land entitlement (TLE) claims are categorized by the Canadian government as a type of specific claim. These claims centre on the fulfillment of treaty promises for the provision of reserve land according to the land quantum stipulated in the treaties. Some First Nations didn't receive all the land that they were entitled to under their treaty. Canada is obligated to fulfill this outstanding debt. The First Nation has to first demonstrate that there was a shortfall when its reserve was first surveyed. The settlement of the claim usually involves the provision of financial compensation sufficient for the First Nation to acquire the land on a willing seller/willing buyer basis. Once all third party interests are resolved, Canada undertakes to have these entitlement lands returned to reserve status under the Additions to Reserve Policy.
In the prairies the provincial governments are involved in the resolution of TLE claims because of their obligation under 1930 Natural Resources Transfer Agreements (NRTA) to assist Canada in satisfying this treaty obligation. The reason for this is because federal jurisdiction over lands and resources were transferred to the provinces under the NRTA.
Treaty Land Entitlement Claims Process
These claims are resolved through a complex process that depends on the expertise of paysheet and TLE policy analysts and on the engagement and participation of a number of parties, including the Canadian government, First Nations, provinces, municipalities and other affected interests. The actual time it takes to resolve one of these claims can range from less than one year to well over five years depending on the complexity of the issues involved.
Under the numbered treaties covering the prairie provinces, a certain quantum of land was promised for each family of five with a commitment to have a reserve set aside when the First Nation so requested. The surveyor would arrive on a certain date and based on the most recent treaty pay list and in consultation with band members available, survey a reserve for the First Nation. This is called the date of first survey (DOFS). Due to the fact that the many band members were not present at the time of survey or inadequate information, many First Nations allege that they had a TLE shortfall.
In response to claims by First Nations throughout the prairie provinces that they did not receive all the treaty land they were entitled to, the Department of Indian Affairs, after various recommendations from aboriginal organization and the Claims Commission, replaced their previous policy with the 1998 Historic Treaty Land Entitlement Shortfall Policy. Under this Policy, the process for determining whether there is a shortfall involves five steps:
- Identification of the band and its applicable treaty land rights.
- Determination of the date the reserve was first surveyed (Date of First Survey).
- Determination of the total lands set aside for the band under the treaty.
- Determination of the band population used to assess the bands TLE, including the DOFS, by considering the base pay list and any arrears, absentees and late additions and then excluding double counts, non-aboriginal individuals, natural increases, those included in error or fraudulently and Indians from outside the treaty area who joined after 1951, when the Indian Register was created.
- Calculation to determine whether or not there is a TLE shortfall.
Once a DOFS shortfall is determined, Canada will accept the claim for negotiation and parties negotiate what the current compensation settlement will be. Examples of treaty land entitlement claims are the Saskatchewan Treaty Land Entitlement Framework Agreement (1992) (which David Knoll was instrumental in negotiating as general counsel for the FSIN and Entitlement Chiefs) and the Manitoba Treaty Land Entitlement Framework (1997).
See also www.aadnc-aandc.gc.ca/eng/1100100034822.
To learn more, contact Knoll & Co. Law Corporation.