Modern Day Treaties (Oct. 28)

This class looked at and focused on modern treaties.

What are Modern Treaties?

Agreements made after 1975 between Indigenous peoples and Canada that recognize land rights, self-government, money, resources, and law-making powers. They fill gaps where no historic treaties existed.

Modern treaties are negotiated for outstanding rights, issues and has not yet been engaged in a Treaty with the government. Also called Comprehensive Treaties or claims. 

What is the Nisga’a Modern Treaty (2000)? 

Treaty made in northwest BC that gave the Nisga’a Nation land ownership, self-government, financial compensation, and control over local laws. It was the first major modern treaty in British Columbia.

• 2,000 km² of land owned by the Nisga’a

• Full self-government (their own constitution, laws, elections)

• Control over citizenship, education, culture, social services

• A blend of Nisga’a law + federal law + provincial law

• Hunting, fishing, and forestry rights

• Financial compensation: $196 million

Importance

• It was the first to break the “no treaties in BC” cycle.

• It explicitly replaces the Indian Act for Nisga’a people.

• It includes strong taxation agreements. Nisga’a gradually pay taxes like other Canadians.

What is the Dene Métis Claim (1980s - 1990s)? 

A land-claim agreement in the Northwest Territories recognizing Dene and Métis rights to land, hunting, trapping, and resource use. It helped protect their territories from outside development. Co five regions.

• Recognition of Dene and Métis Aboriginal title

• Rights to hunt, trap, fish, travel on the land

• Land ownership of large areas

• Shared management of wildlife and resources

  • Other areas allow for the Inuit’s full management.

• Protection of harvesting rights

• Money and economic development support

Importance

• Involves both Dene and Métis Nations (most treaties are First Nations only).

• The claim was negotiated as a large, collective agreement, but not fully finalized, it split into regional agreements (Sahtu, Gwich’in, Tłı̨chǫ).

• Shows the complexity of shared territories between different Indigenous groups.

• Multi-nation, partial settlement, very complex. This agreement ultimately fell apart.

What is the Tłı̨chǫ Agreement (2005)?

A 2005 modern treaty giving the Tłı̨chǫ Nation (NWT) self-government powers, land ownership, and control over education, culture, and local laws in the NWT. It also includes a regional government. First combined land, resources and self-government agreement in the NWT. The Tłı̨chǫ Agreement emerged out of the breakdown of a much larger, combined Dene–Métis comprehensive claim.

• 39,000 km² of land completely owned by the Tłı̨chǫ.

  • Of a single block of 39,000 square kilometres of land, including subsurface resources, centred on the four Tłı̨chǫ communities.

• $152 million over 14 years

• Jurisdiction over child welfare, education, culture, law making, wildlife management, water, and land.

• Revenue sharing from mining and resource development (with the government)

• Participation in regional government decisions, and self-government.

Importance

• Canada’s first modern treaty that included full self-government in the same agreement.

• Tłı̨chǫ laws can be equal or stronger than federal/provincial laws in some areas.

• The Tłı̨chǫ kept a strong connection to Dogrib/Dene traditions in the governance structure.

What is the Exhaustion Clause (New Model)?

In modern treaties, an exhaustion clause means that: The treaty fully lists (“exhausts”) all of the Section 35 Aboriginal rights that the Indigenous Nation will have going forward.

In other words:

• No other Aboriginal rights exist outside what is written in the treaty.

• If a right is not mentioned in the treaty, it does not continue to exist and cannot be claimed later in court.

• This was giving up of all cultural rights outside of what was stipulated.

This is different from historical numbered treaties, which didn’t list rights in detail. Modern treaties use an “exhaustive” approach: everything is spelled out, and what is not spelled out is considered not included.

What is the Labrador Inuit Land Claims Agreement (LILCA)?

A 2005 treaty giving the Labrador Inuit land rights, wildlife rights, co-management, and their own government (Nunatsiavut). It created self-government in northern Labrador.

• 15,800 km² of Inuit-owned land.

  • 140 million over 15 - 50 years.

  • 7,000 members. 

• Co-management of wildlife, fisheries, waters, parks.

• Creation of the Nunatsiavut self-government.

• Cultural protection, language support, Inuit laws.

  • Archeological sites.

• Financial compensation + royalty sharing from resource projects.

Importance

• Strong focus on environment and wildlife co-management.

• Created a new Inuit regional government. Nunatsiavut is now a political region in Canada.

• First agreement to include protections for Inuit archaeology and burial sites.

What is the Tla’amin Final Agreement (2016)?

A 2016 modern treaty in BC giving the Tla’amin people self-government, land, and financial compensation, ending the band council system and replacing it with their own nation government.

• 8,323 hectares of land.

  • 1,100 beneficiaries

• $33.9 million in financial compensation over 10 years. 

• Full self-government replacing the Indian Act.

  • Similar to the Nisga’a.

• Authority over health, education, land, taxation, culture.

• Resource rights and control over local developments.

Importance

• Very modern, recent (2016).

• Explicitly ends Indian Act governance and creates a nation government.

• Includes shared decision-making over forests, fisheries, and coastlines.

Comprehensive (Modern Treaties)

Comprehensive land claims apply where no historic treaty was ever signed. These are what we now call modern treaties.

They usually include:

• Land ownership

• Resource rights

• Wildlife harvesting

• Money over a specified period of time.

• Self-government

• Co-management of land and water

• Other exceptions and additives depending on the nation.

  • e.g. ending the Indian Act band council (BC), providing a consensus government (Nunavut), protection of ancient burial sites (LILCA), shared decision making over forests, fisheries and coastlines (BC).

Examples: Nisga’a Treaty, Nunavut Agreement, Tłı̨chǫ Agreement.

Specific Land Claims

Specific Land Claims deal with past wrongs. When the government broke a treaty, broke an agreement, mismanaged land or money, or illegally took reserve land.

Examples:

• Reserve land taken without consent

• Treaty payments not made

• Misuse of Indian Act trust money

These claims do not create new treaties; they fix old mistakes.

Extinguishment Clause (Old model)

A clause that erases (“extinguishes”) Indigenous rights to land forever once a treaty is signed. This is a surrender and cede clause. “Once you sign this treaty, you no longer have any Aboriginal title or land rights over this area.”

• Permanently ended Indigenous land rights

• Transferred full ownership to the Crown

• Was used in early modern treaties and land claims

• Considered unfair, colonial, and coercive

• Prevented future claims, even if new evidence appeared

It forced First Nations to give up their inherent rights in order to sign an agreement. However, this was only applicable to land rights, not cultural rights (like the exhaustion model).

Why is the Exhaustion Clause Worse ?

• Exhaustion clauses operate as termination of inherent rights, because rights not listed are treated as gone.

• They “freeze” Indigenous rights into a document negotiated within a colonial legal framework.

• They limit the ability of future generations to assert rights that may later be recognized by evolving case law.

This is why Diabo says the Nisga’a Agreement represents the “termination model”, even though governments describe it as “modern self-government.”

Beginning in the 2000s, after decades of criticism, Canada adopted the modification model, which states:

“Aboriginal rights are not extinguished, but modified, set out or continued through hte treaty.”

What is the Nunavut Agreement (1993)? 

The Nunavut Agreement (1993) was a modern treaty between the Inuit and Canada that created the territory of Nunavut in 1999.

• Inuit rights to 350,000 km² of land.

• Provided $1.17 billion in compensation.

• Protected wildlife harvesting rights.

• Created strong Inuit roles in managing land, water, and resources (3 new national parks).

Important

• One of the largest land-claim settlements in Canadian history,

• Established a public government where Inuit are the majority, strengthened Inuit culture and language

• Advanced Inuit self-determination in their homeland (“Nunavut” means Our Land).

The Coolican Report (1986)

A federal review of the land-claims system that found the process was slow, unfair, and too controlled by the government. 

• Only small technical fixes; it kept the cap of 6 negotiations and still required extinguishment of Aboriginal rights.

  • Only 6 claims could be negotiated at once,

  • Extinguishment still required,

  • Process too slow and bureaucratic,

  • First Nations had little power

It didn't fix the core issues, extinguishment stayed, and only the James Bay Agreement existed as a major treaty at the time.

Comprehensive Claims Policy (1996) 

It ended extinguishment and replaced it with “certainty clauses” so Nations didn’t have to give up their inherent rights.

• It removed the government’s negotiation cap allowing many Nations to negotiate at the same time.

• It allowed self-government rights to be included directly in modern treaties.

• It shifted modern treaty focus from the North to British Columbia, where most lands had no historic treaties.

Inuit Tapirisat of Canada (Inuit Tapariit Kanatami)

The Inuit Tapirisat of Canada, now called Inuit Tapiriit Kanatami (ITK), is the national organization representing Inuit in Canada.

• It was created in 1971 to protect Inuit rights, lands, language, and culture.

• ITK played a major role in negotiating land claims, including the Nunavut Agreement, and continues to advocate for Inuit health, education, housing, and self-determination across Inuit Nunangat (the Inuit homeland).

The Nunavut Territory (Nunavut Agreement)

Nunavut is a territory created in 1999 after the Nunavut Agreement giving Inuit control over their homeland.

• Its first Premier was Paul Okalik, who chose his own cabinet.

• The capital is Iqaluit, and the government has 19 seats.

• Runs a public government where all residents can vote. Inuit culture guides policy, Inuktitut is an official language.

• Nunavut uses a consensus government system, meaning there are no political parties and MLAs work together instead of competing.

• A gender-parity plan (one man, one woman elected per district) was proposed but narrowly did not pass.

Aboriginal Title in Canada

The legal term for the inherent land rights that Indigenous peoples have because they occupied, used, and governed the land long before Europeans arrived.

It is a collective, inherent, and constitutionally protected right.

• Aboriginal Title does not come from a treaty or from the Crown.

• Comes from the fact that Indigenous peoples were here first and lived on the land for thousands of years.

• Section 35 (1982) protects existing Aboriginal and treaty rights.

James Bay and Northern Quebec Agreement (JBNQA)

James Bay Modern Treaty (1975)

The James Bay Modern Treaty is widely recognized as Canada’s first modern land claim agreement, signed in 1975 between the Cree and Inuit of Northern Quebec, the Government of Quebec, the Government of Canada, and Hydro-Québec.

• It emerged because Quebec wanted to build a massive hydroelectric project in James Bay, which would flood Cree and Inuit lands.

• It marked a shift away from historical numbered treaties toward negotiated, comprehensive land-claim agreements with detailed rights.

• It forced governments to recognize that Indigenous peoples held legal rights to land that could not simply be ignored for development.

• It inspired Section 35(3) of the Constitution Act, 1982, which explicitly recognizes modern treaties.

• It set the template for the next 40+ modern treaties across Canada.

Inuvialuit Final Agreement

The Western Arctic Claim 1984

The Western Arctic Claim refers to the first comprehensive land claim agreement in the Northwest Territories, signed in 1984 between the Inuvialuit (Inuit of the western Arctic) and the Government of Canada.

It is considered Canada’s second modern treaty (after the James Bay and Northern Quebec Agreement, 1975).

The Inuvialuit received:

• 91,000 km² of land, including

• 13,000 km² with full surface + subsurface mineral rights

• The Inuvialuit received $45 million (1984 dollars), paid over 13 years.

Importance:

• It is one of Canada’s earliest modern treaties.

  • Agreement did not however create self-government.

• It recognized strong Inuit stewardship and co-management of Arctic wildlife.

• It helped define how land claims in the Arctic would work (Nunavut negotiations followed soon after).

• It formed the basis for Inuvialuit influence over oil, gas, and environmental policy in the North.

Russell Diabo

A Kanehsatà:ke Mohawk policy analyst and one of Canada’s most prominent Indigenous critics of federal land-claims, self-government, and “certainty” clauses, arguing that modern treaties often undermine true Indigenous nationhood and sovereignty.

• Found that this forced First Nations into municipal-style governments.

Pros of Modern Treaties

1.        Clear land and governance rights;

2.        Constitutional protection (Section 35);

3.        Great self-government;

4.        Land, subsurface and resource rights;

5.        Economic development resources and advantages;

6.        Moves away from the structure of the Indian Act.

Cons of Modern Treaties

1. Resembles extinguishment to critics;

2. May limit full sovereignty;

   1. Funding still dependent on the federal government in most cases.

3. Heavy federal control over the process;

4. Extremely long and expensive (10 – 25 years);

5. Implementation delays;

6. Can divide regional nations