This summer the Supreme Court of Canada made a historic ruling that the Tsilhqot'in Indigenous nation in British Columbia holds Aboriginal title to its traditional territory and ensures that First Nations with title have decision-making power. If this court decision can be implemented on the ground, it offers a chance to create a radically more just country. But the Harper government is denying this new reality: in order to push through their tar sands pipelines and resource extraction projects, they are trying instead to accelerate the elimination of Aboriginal rights. In response to the Tsilhqot’in decision, Harper has quietly introduced a newly revised policy to undermine and negate the Indigenous land rights that stand in the way of his agenda.
We can't let this happen. Honouring Indigenous jurisdiction would not just pay off Canada's enormous legal and moral debt to First Nations: it is also our best chance to save entire territories from endless extraction and environmental destruction. Canada can seize the opportunity at this historic crossroad, but only if we build massive pressure on the Canadian government to finally recognize and affirm Aboriginal title.
Join Defenders of the Land and Idle No More in putting forward 4 demands to challenge the current land claims reform process:
- Disengagement of negotiating bands from the Termination Tables and forgiveness for all loans taken out to finance the process;
- A fundamental and joint reform of both the Comprehensive Land Claims and Self-Government policies with duly mandated representatives of Indigenous peoples, with the aim of making the policies consistent with both Canadian law on Aboriginal title, Aboriginal rights, treaty rights and inherent Indigenous laws of jurisdiction;
- Federal and provincial governments must provide funding grants to Indigenous peoples for negotiation processes;
- Absolute rejection of the unilaterally imposed Eyford consultation process.
What you can do to support these demands:
Over 900 people sent messages to Douglas Eyford expressing concern about the consultation process and the interim policy. Thanks to all those that sent messages!
About Termination Tables
Check out the Turn the Tables Infographic for a visual summary of what the Termination Plan is all about:
What is Termination?
Termination means the ending of First Nations pre-existing sovereign status through imposed Indian Act legislation, policy and federal coercion of First Nations into Comprehensive Land Claims and Self Government Final Agreements that convert First Nations into municipalities, their reserves into fee simple lands and extinguishment of their Inherent, Aboriginal and Treaty Rights!
What are the Termination Tables?
The termination tables are negotiation tables between the Federal Government and mainly First Nations Chief and Councils. These negotiations are called “Comprehensive Land Claims” and/or “Self-Government” negotiations, the final agreements will--within Canadian constitutional law--extinguish Aboriginal Title and convert “Indian Bands” into municipal type governments where federal and provincial powers will dominate First Nations powers.
Who is negotiating at the termination Tables?
There are currently 403 communities at these 93 negotiation tables. The interactive map shows the location of Aboriginal communities negotiating agreements, including specific information on all negotiations in progress.Here is the link:
Find out if your Chief and Council is negotiating at a Termination Table
Click on the image to the left to download a PDF list of all of the Termination Tables. Then scan through the list to see if you can find your nation, band, or community.
What can First Nations do to turn the tables on termination?
1. Educate community members about how the Termination Tables will have intergenerational effects for the loss Indigenous rights. Our children and grandchildren will lose their inherent rights to self-government and access to land.
2. Plan community meetings to seek support on stopping these negotiations that are based on extinguishment and denial of our Inherent, Aboriginal and Treaty rights and campaigning to replace these Terminations Tables with Self-Determination Tables that are based on recognition and affirmation of our inherent, Aboriginal and Treaty rights..
“The hope is in the people” Interview with Russell Diabo
About the land claims policy:
(1) What is the land claims policy?
The Comprehensive Land Claims policy is a federal policy that was introduced in 1973 as a political process to resolve the matter of all outstanding unceded First Nations’ land in Canada. A land claim is not about recognizing Indigenous title, it is about establishing Canada’s claim to Indigenous land.
Though Indigenous laws of hospitality and settlement were often respected in the early days of contact, over time, European sovereignty was forcibly imposed through statute, legislation, and informal policies of displacement and dispossession.
Despite Europeans’ claim to sovereignty, the Royal Proclamation of 1763, issued by King George III of Britain, laid out clearly and definitively the terms by which the Crown could take possession of “Indian land”: it would have to be surrendered by bands under terms of collective Indigenous consensus. The Royal Proclamation, 1763, is enshrined in section 25 of the Constitution Act, 1982.
The Royal Proclamation, 1763, entered into Indigenous law in 1764 in the Treaty of Niagara, when over 2,000 Chiefs from over 24 nations traveled far and wide to participate in the negotiation and ratification of this nation-to-nation agreement to secure positive guarantees for their self-government rights. Chiefs attended from west of the Mississippi, north of Hudson Bay, and Nova Scotia. Sir William Johnson presented the Covenant Chain and two-row wampum belt to symbolize the relationship of partnership between nations, founded on peace, friendship, and respect and principles of non-interference.
Land treaties were signed across the country that violated the spirit of this agreement. Indigenous oral history and much documentary evidence records an understanding of land treaties not as land surrenders, but rather as terms of agreement around sharing the land that guaranteed Indigenous nations’ economic livelihood and access to lands and resources for all future generations. Yet the treaties have been narrowly interpreted by governments intent on securing these same lands for exploitation and development. The last historic treaties negotiated were the “numbered treaties” signed between 1871-1930, (including the adhesion to Treaty 9) which swept the country to secure land for railways, resource development, and settlement. Then, for more than forty years, no treaties were signed.
A Supreme Court of Canada decision in 1973 changed that. The Calder v. British Columbia (Attorney General)  S.C.R. 313 Supreme Court of Canada decision opened up the possibility of Aboriginal title in British Columbia and on unceded lands more generally. The Court split on whether the Nisga’a Nation (located in the Nass Valley) held underlying title to the land or whether the province was right in claiming that their title was extinguished with the creation of British Columbia in 1871. Three Justices were in favour of the plaintiffs, three were against, and there was one dismissal based on a technicality.
This uncertainty led to the introduction of the Comprehensive Land Claims policy in 1973 following the Calder decision. The policy introduced a framework for negotiation for all unceded lands in Canada. The Specific Claims policy soon followed, designed to resolve grievances over specific tracts of land that had been expropriated without first being surrendered or ceded to the Crown as laid out in the Royal Proclamation, 1763. Much later, in 1995, the Self-Government Policy was introduced to implement the transition between Indian Act legislated governments to newly formed political entities of “independent” bands and nations.
(2) Aren’t the land claims policy and self-government policy good for Indigenous people? Why are Indigenous people critical of them?
The Comprehensive Land Claims policy undermines inherent Indigenous rights to the land by forcing negotiating bands and groups to make all of the compromises over land and governance while Canada makes all of the gains. The 1981 land claims policy stated that the policy’s objective was “to exchange undefined aboriginal rights for concrete rights and benefits,” calling for the “extinguishment of all aboriginal rights and title as part of a claim statement.”
The language of “extinguishment” in the policy was successfully challenged and disappeared from the text when the Nisga’a Nation Final Agreement was negotiated in 2000, but the federal government has never changed the underlying extinguishment requirement. What did change in the policy was the language used to require extinguishment. A language of “modification” and “non-assertion” was adopted in the Nisga’a Final Agreement, with the same meaning. The pretense of this new language was that Aboriginal rights were being modified, but not extinguished. What is sometimes called “certainty language” by negotiators substitutes the languages of “modification” and “non-assertion” for “cede, surrender, and release,” but like extinguishment, “modification” or “non-assertion” still requires Indigenous Peoples to permanently give up their Aboriginal rights and title in exchange for treaty rights.
These modern “treaty rights” since the Nisga’a Final Agreement include the requirement that all collective, unceded lands are transformed into fee simple private property. They involve a land-cash formula that averages out to Indigenous loss of approximately 95 percent of territorial lands. They promote a guarantee of band autonomy over remaining lands, but wherever Indigenous law conflicts with provincial jurisdiction, the latter trumps. The new rhetoric of extinguishment has been reinvented as a policy of “exhaustion,” where the diminished “rights” contained in the treaty document “exhaust” all the rights the band or nation can claim, in order to deny all possible avenues for exercise of inherent rights of Indigenous sovereignty and jurisdiction. There are many excellent reviews of the policy that can be accessed under Related Content below.
The requirements of “extinguishment” and “exhaustion” have of course been vigorously opposed. Nonetheless, to date, there have been 21 land claims signed under the Comprehensive Land Claims policy and there are currently 99 First Nations at negotiating tables across the country. Over half of the current pending negotiations concern BC First Nations, where almost no treaties were historically signed. Some land claims negotiations are grouped in “regional tables,” such as the British Columbia Treaty Process (BCTP) or the Atlantic tables that tend to be sorted arbitrarily by province. While framed by Canada as unique processes designed to suit the particular local needs and context of First Nations, these regional processes all fall under the same non-negotiable aspects of the federal policy. Under its take-it-or-nothing approach, Canada has simply offered no alternative negotiating protocols to resolve land claims in Canada.
- Russell Diabo, “Harper Launches Major First Nations Termination Plan: As Negotiating Tables Legitimize Canada’s Colonialism,” First Nations Strategic Bulletin Vol. 10, Issues 7-10, June-October 2012.
- Arthur Manuel, “New Relationship or “Final Solution” – An Analysis of the Certainty Provisions of the Final Agreements Initialed Under the BC Treaty Process,” First Nations Strategic Bulletin Vol. 4, Issue 12, December 2006.
- Cynthia Callison, June McCue, Nicole Schabus, Mavis Erickson, “Towards Recognition of our Inherent Rights as Indigenous Peoples,” Paper Commissioned by Kukpi7 Wayne Christian, Splatsin, Secwepemc Nation, Aug. 25, 2009.
- National Indian Brotherhood, “Doublespeak of the 90’s: A Comparison of Federal Government and First Nation Perception of Land Claims Process,” Assembly of First Nations, August 1990.
(3) What is the current status of the land claims policy?
In late September 2014, Canada quietly introduced the first major reform to the land claims policy in 30 years. This policy is not intended to address the fundamental problems with existing policy, it is intended to shore up that policy and expedite extinguishment. The unbelievably short consultation period on the interim policy ends on November 30.
Consultation is being led by Douglas Eyford – the author of “Building Partnerships,” known as the “Eyford Report” – that made recommendations to the federal government on West Coast energy infrastructure in 2013. The Eyford report spelled out Canada’s priority: the need to “capitalize” on global energy demands, therefore “to construct pipelines and terminals to deliver oil and natural gas to tidewater.”
The “impediment” to an expanded, diversified energy market is that Aboriginal peoples hold constitutionally protected title, rights, and treaties which industry and government must legally comply with. One strategy for obtaining compliance – particularly in British Columbia, where most lands are unceded – is through the land claims policy or through related “non-treaty agreements” that secure access to Indigenous lands and resources for the purposes of extraction and development. So it is no surprise that Douglas Eyford was appointed the Ministerial Special Representative on Land Claims almost immediately following the release of the Supreme Court of Canada Tsilhqot’in decision [see FAQ 5].
Eyford is traveling across the country scheduling meetings with First Nations bands until November 30. He is scheduled to release his report and recommendations for policy reform in mid-January 2015.
(4) Why are Indigenous peoples critical of the reforms?
The interim policy states that opportunities for Aboriginal “long-term success and economic prosperity” cannot be achieved without addressing Section 35 rights. What the interim document attempts is to collapse Section 35(1) rights and the land claims policy into one comprehensive extinguishment agenda.
The interim policy reiterates that there are no guarantees of resource revenue sharing, no guarantees of subsurface rights, and no decision making power – let alone Free, Prior, and Informed Consent, as recommended by UNDRIP – over environmental management. Economic development will proceed on the same terms as it always has – under provincial jurisdiction and authority. Other changes recommended in the interim policy include bringing non-land treaty rights like education under the land claims policy.
Section 35(1) is interpreted to be fundamentally about reconciliation, which is seen as best expressed through the land claims and other non-treaty agreements that manage conflict over land by replacing Indigenous jurisdiction with the “certainty” of Crown ownership.
In a confusing description provided by AANDC, the policy claims that a “certainty” or “legal reconciliation” technique will ensure the continuation of Section 35(1) rights post-treaty:
This legal technique reconciles the coexistence of existing Section 35 Aboriginal rights with treaty rights by enabling the continuation of the group’s existing Section 35 Aboriginal rights while ensuring that, to the extent the continuing rights are inconsistent with the treaty, they cannot be used to undermine the agreement of the parties (p. 12).
If we unscramble this language, it suggests that wherever Section 35 rights are “inconsistent with the treaty” they will be voided.
The Tsilhqot’in decision is not mentioned as a motivating factor for the current changes in the policy. However, this policy was introduced on the heels of that Supreme Court of Canada decision. Judith Sayers points out one stark difference between the Tsilhqot’in Nation’s title recognition versus the Comprehensive Land Claims policy in terms of the amount of land settled. Whereas Tsawwassen First Nation (TFN) received 724 hectares of land and the Ma’Nulth (MNA) (5 bands) received 20,900 hectares in fee simple (private) property through land claims, the Tsilhqot’in had 220,000 hectares of Aboriginal title lands recognized, which are still held in their collective, customary, sui generis form. The Comprehensive Claims formula for final settlement is a paltry average of $25,600 per head in cash and 9.3 Hectares (23 acres) per head in land.
- The Algonquins of Wolf Lake, Timiskaming, Eagle Village & Barriere Lake Presentation to Mr. Douglas Eyford, Special Federal Representative Regarding Canada’s Interim Comprehensive Claims Policy, Montreal, Quebec 30 October 2014.
- Union of British Columbia Indian Chiefs, Draft Resolution no. 2014-17: RE: Rejection of Federal Interim Policy “Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights,” September 19, 2014.
- Assembly of First Nations, Quebec-Labrador, “Resolution No. 23: For A Federal Comprehensive Land Claims Policy that Respects the Aboriginal Title, the Aboriginal and Treaty Rights of the First Nations, the Honour of the Crown, Canada’s Constitutional Act and the United Nations Declaration on the Rights of Indigenous Peoples,” October 24, 2014.
(5) What does the recent Tsilhqot’in Nation v. British Columbia (2014) Supreme Court of Canada decision have to do with the land claims policy?
There are fundamental changes that Canada could make to reform the Comprehensive Land Claims policy for the better. In her ruling, Justice McLachlin specifically rejected what Union of British Columbia Indian Chiefs Grand Chief Stewart Philip called the “postage stamp” theory of Aboriginal title. Instead, the court opted for a more expansive understanding of Indigenous land rights over a broad territorial range. Yet the land selection process under the Comprehensive Land Claims policy is precisely the kind of site-specific approach to addressing underlying Aboriginal title that the Supreme Court of Canada rejected. The entire territorial range including private lands should be on the table at least for compensation and Aboriginal title should not be extinguished upon settlement or transformed into private property.
Tsilhqot’in also offers negotiating Indigenous nations and communities reasons to disengage from the process. Here are just 3 aspects of the Tsilhqot’in decision that offer far greater protection and uncertainty to Indigenous peoples:
If the timber on Aboriginal title lands can no longer be considered Crown timber, then provinces across the country have lost – to a hereto-unknown extent – exclusive legislative jurisdictional authority over vast amounts of natural resource development.
Once Aboriginal title is proven, provincial regulation and legislation are likely no longer valid, unless provincial authorization is granted by consent of Indigenous peoples.
Provincial jurisdictional authority to allocate resources on Indigenous lands to third parties is subject to consent of Aboriginal titleholders.
- “Tsilhqot’in Case and Indigenous Self-Determination” by Arthur Manuel; “SCC Tsilhqot’in Decision and Canada’s First Nations Termination Policies,” Russell Diabo; “Treaties and Tsilhqot’in-Treaties at Risk?” Judith Sayers, First Nations Strategic Bulletin Vol. 12, Issues 1-7, Jan-July 2014.
- “Common Ground: Toward Reconciliation of Aboriginal Title and Crown Title: A Discussion Paper on Implementing the Delgamuukw Decision,” First Special National Conference on Delgamuukw Hosted by Interior Alliance and the Assembly of First Nations, February 1999.
- Federal Comprehensive Claims Policy vs. Recognition of Aboriginal Title & Rights,” Presentation by David Nahwegahbow & Russell Diabo, 25th Annual Indigenous Bar Association Conference, October 9, 2013.
- Bruce McIvor, “Legal Review of Canada’s Interim Comprehensive Land Claims Policy,” Prepared for the Union of B.C. Indian Chiefs,” November 4, 2014.
- Russell Diabo and Shiri Pasternak, “Canada Responds to Tsilhqot’in: Extinguishment or Nothing!” First Nations Strategic Bulletin, Vol. 12, Issues 1-7, Jan-July 2014.
 AANDC, “Negotiating Tables.” Accessed online May 9, 2013: <http://www.aadnc-aandc.gc.ca/eng/1346782327802/1346782485058>
 See AANDC’s website for a full listing of negotiations: Aboriginal Affairs and Northern Development Canada, “Comprehnsive Land Claims,” September 12, 2012. Accessed online May 8, 2013:
For Further reading:
Canada's Interim Comprehensive Land Claims Policy | http://www.firstpeopleslaw.com/index/articles/166.php
SCC Tsilhqot’in Decision: Canada’s First Nations Termination Policies by Russell Diabo (July 14, 2014
Canada: Prime Minister Harper Launches First Nations Termination Plan by Russell Diabo (Jan 10 2013)
Harper Launches Major First Nations Termination Plan: As negotiating tables legitimize Canada’s colonialism. by Russell Diabo (Nov 2012)
Indigenous Foundations: What are Aboriginal Rights? (UBCIC)
Aboriginal Policy: Legal and Constitutional Framework: Federal Department of Justice;1990
Canada’s Struggle to Extinguish Aboriginal Title (UBCIC)
The Federal Government’s Termination Policy mirrors the United States Indian Termination Policy http://en.m.wikipedia.org/wiki/Indian_termination_policy