The current Canadian land claims policy and process is not working. It is based on a totally wrong interpretation of First Nations Land and Resource Rights. It does not correct the long history of injustice against First Nations; rather, it seeks to deny and extinguish our aboriginal and treaty rights and resources. It is based on the 1969 White Paper's concept of Alawful obligation. It does not acknowledge recent changes in aboriginal law or decisions of Canada's Supreme Court. In applying the policy, the federal government places itself in a major conflict-of-interest. It sets itself up as defendant, judge, jury and executioner. The process is incredibly slow and First Nations have no other alternative but to go to court and seek justice.

More importantly the current Claims Policy is based on the erroneous notion that First Nations land rights were extinguished by the Treaties and Canada somehow now has title to First Nations lands and resources. The policy makes an arbitrary and totally self-serving distinction between different types of First Nations interest in their lands labeling them Comprehensive and Specific Claims. Yet First Nations in all parts of Canada have stated clearly that no aboriginal title was surrendered by the Treaties and that First Nations title to the land continues.

First Nations have consistently pressed the government for a new Land Claims Process since its inception in 1973. In 1981, 1990 and again in 1985, the First Nations political organizations in Ontario made a series of recommendations for change buy they have been ignored by the federal government.

Treaties Affirm Land Rights

First Nations land rights stem from their aboriginal title to the lands and resources. The First Nations have occupied, managed, protected and gained their sustenance from the land and resources called Turtle Island and now known as Canada. Our territories transcend the borders of Canada and the United States.

When the first settlers arrives here, we helped them to survive in this country. Our earliest relationships with Euro-Canadians were as friends and allies. First Nations also established economic relationships to protect First Nations' interests, as the French and English Nations expanded and fought for control over the fur trade. As European immigration increased and settlement progressed it became necessary to share the land with the European settlers.

The instrument by which we entered into these relationships was the Treaty, whose primary function is to guarantee peaceful co-existence and mutual economic benefit. The Treaties are an explicit recognition of the sovereign, self governing, self determining nature of the First Nations.

First Nations sovereignty and title to our lands was recognized from the earliest times, for example, by the Dutch in the Dutch in the 1600's, in the Two Row Wampum Treaty and explicitly by the British through the Royal Proclamation of 1763. It set out a strict treaty making process whereby our lands could be used by the Crown.

First Nations Values and Perceptions of Land and Treaties

The First Nations' concept of land differs radically from that of the European. The land and all living are sacred to us. The creator gave the land to First Nations to allow us to survive and flourish as aboriginal people. For the First Nations, it was inconceivable to own or sell land, the air, or the water. The First Nations view is that we are merely custodians of the land and resources, protecting and nourishing it for current and future generations. Land was to be shared by all and there was no concept of private or individual ownership.

The Treaties are often erroneously called, ALand Cessions or Land Purchases by Canada, and are the basis for Canada's claim to title. However, they were intended to share the use of the lands and resources and did not relinquish title to the land itself. We now find ourselves in the position of having to file ALand Claims for the return of our own homelands.

The European settlers who arrived here from foreign lands brought no land with them. The country they formed, now called Canada, can claim no legitimate or legal title or ownership to our lands through the outdated and discounted doctrines of Discovery and Occupation, Conquest, Cession, nor by Papal Royal Grants.

Our lands were not discovered; First Nations were not conquered; First Nations did not surrender or cede title to our homelands and no Pope or Monarch had any right or authority to grant our lands to anyone.

In entering into treaties with us, the European Nations acknowledged that The First Nations are Sovereign Nations in the full international sense, having our own governments, clearly defined territories and well developed. flourishing societies and cultures. First Nations did not surrender their title to the lands, waters and resources. We did not give up our Sovereignty nor our right t freely govern ourselves. We did not grant the Colonial government authority to impose their laws on our peoples or lands. our Inherent Title, Sovereignty and Inherent Right to Self-Government continue to this day.

Broken Treaty Promises - The First Land Rights Grievances

Many of the Lands Rights Grievances (land claims) were the direct result of violations of the treaties and original relationship. The validity f many of the Treaties is a large, central and unresolved question and is the subject of many First Nation land rights assertions and claims today. In many cases, the Treaties were either improperly conducted (contrary to the procedures set out in the 1763 Royal Proclamation ) or the terms, as understood by First Nations participants, were inaccurately recorded or intentionally excluded. First Nation oral traditions and memories of the Treaties in most cases differs radically from the document that is stored in the Archives in Ottawa. In all cases, negotiations were conducted in a language foreign to First Nations and the resulting documents that Canadians recognize as Treaties today were written by the Crown.

Many, Treaties, as recorded by the Crown, profess to surrender all First Nations rights and interests in their traditional homelands, in some cases millions of acres, in exchange, for example, for a few thousand dollars, suits of clothing, farm implements, twine and ammunition. It is simply inconceivable and unbelievable that for the Aland cession Treaties, the First Nations would have given up title and all future rights to their rich and abundant homelands. The exchange is so inequitable as to constitute the greatest land fraud in the history of North America.

All of the Treaties and agreements signed by the Crown, and through which the Canadian government claims title to the land and resources in Canada, have been abrogated or broken. Yet less than 1% of the land acquired by the Treaties has ever been returned to the First Nations.

The examples of treaty branches are numerous and consistent across Canada.

Lands and waters that we promised to be set aside as reserves were often either denied or reduced. Often Treaty Commissioners exceeded their authority and had no idea of the amount of land they were dealing with in the treaty.

Treaty annuities have never been increased from the amount provided at time of the treaty negotiation ( 125+ years ) - $5.00 per person. Often other treaty promises for equipment, clothing, etc. were simply discontinued.

Reserve lands supposedly protected under treaty were often taken without legal authority or compensation. in some cases compensation given for First Nation territories was so paltry as to make the Treaty unconscionable and against the laws of natural justice.

Reserve lands were often expropriated or sold for far less than fair market value.

Payments were sometimes not credited to First Nation Trust Accounts or in many cases First Nations trust funds were mismanaged, stolen or used to finance the day to day administration of the Federal and Provincial Governments.

These trust funds form part of the fiduciary obligations that the federal government has towards First Nations yet the federal government has never provided an accurate accounting of any of the trust accounts, some having been established in 1780.

All profits, royalties, revenues and wealth ever created in Canada come as a result of the Treaties with the First Nations for our lands and resources, yet all the treaties have been abrogated and none of our traditional territories have been returned. First Nations have rarely shared in the wealth of this country and many now live in impoverished Athird world conditions.

Large portions of First Nations homelands have been flooded for hydroelectric development. In some cases the remains of ancestors of flooded burial grounds later washed up along shorelines.

First Nations people have not been quiet about pressing for the recognition of their land and Treaty rights. We have consistently presented petitions to the Crown's representatives to force her government in Canada to live up to the spirit and intent of the Treaties. First Nations Peoples have consistently gone to the courts and to England and Europe to present their grievances and to press for justice. From 1927 until 1951 the Canadian government attempted to derail our search for justice by making it illegal to raise monies to pursue land claims in Canada and until 1960 First Nations were not offered the right to vote in Canadian elections.

The Federal Land Claims Policy

The federal Land Claims Policy does not recognize First Nations Land and Resource rights. The federal Claims Policy came about as a direct result of the Supreme Court of Canada recognition of Aboriginal Title in the 1973 Calder Decision involving Nishga's Land Rights in British Columbia. The federal policy was announced in August 1973.

The federal government recognizes two major types of claims. Comprehensive Claims deal with continuing aboriginal rights and title in areas where no treaties have been negotiated. They require the claimant First Nation to prove traditional use and occupancy.

Specific Claims arise from the breach of Treaties or other legal obligations including the improper administration of First Nation lands or assets such as trust funds. Many specific claims deal with the illegal taking of Indian Reserve land and the failure to pay compensation where lands were taken under the cloak of lawful authority.

The federal policy also acknowledges a third type of claim, Claims of a Difference Kind, which includes those claims that fall within the spirit of the Claims Policy but do not meet strict program criteria.

Following First Nations dissatisfaction with the original claims policies, the Federal Government conducted its first review in 1980 which resulted in the release of the Comprehensive Claims Policy, In All Fairness, and the Specific Claims Policy, Outstanding Business, in 1982. Minor changes were made to the Comprehensive Claims Policy in 1986 following the Coolican Commissions review of the process.

The most recent change to the policy came as a result of the land rights of the land rights action at Kanesatake, Quebec, the AOka Crisis. In 1990 the federal government conducted a consultation with a Chief Committee on the Specific Claims Policy and Process in response to First Nations complaints. This resulted in the formation in 1991 of an Indian Specific Claims Commission and a Joint Federal/First Nations Working Group (JWG). The federal policy was also amended to include pre-confederation claims and a so-called Afast track process was created to settle claims under $500,000.

The Indian Specific Claims Commission that was established was not jointly mandated, nor was it given the powers requested by First Nations and it has been ineffective to date. Its powers are dependent on the claims policy and are limited to providing recommendations to the Government on issues of validation and compensation, only after the federal government has made its decision on these issues. It can play the role of mediator if so requested by the parties.

Recently the Minister of Indian Affairs offered to jointly develop an independent land claims process in Canada but refused to sign a political protocol committing him to an outcome. Another joint process has been initiated at a technical level; however, the distinctions between Aspecific and Acomprehensive claims remain. The Minister has extended the mandate of the Specific Claims Commission; however , they have received no new powers to address its ineffectiveness.

The Joint Working Group had a mandate to develop options to change the specific claims Policy but this process ended in a stalemate in July 1993 when the federal representatives would not agree to fundamental changes.

Under the current policy, First Nations must research and submit specific Claims to the Government, which then decides whether to accept the claim as valid. Validated claims proceed to the negotiation stage; rejected claims can be reviewed by the Specific Claims Commission. Negotiation of validated claims may result in compensation for First Nations, but it is use restricted by government criteria which First Nations believe is unfair. Compensation issues can also be sent to the Claims Commission for review, but it has no power to compel the federal government to take any action.

In November 1996 the Royal Commission on Aboriginal Peoples tabled its final report which called for a major overhaul of the federal claims policy calling for an independent body and a commission to oversee the process.

The Inadequacy of the Federal Claims Policy and Process

The following issues show the inadequacy of the federal Aclaims policy.

1. Burden of Proof

The first flaw in the Federal Land Claims Policy is the very name itself, ALand Claims, which is a misleading title and an insult to First Nations. If there is any doubt as to ownership, the benefit of the doubt must go to the original owners - the First Nations. Why should we have to claim our own lands? The burden of proof of legal title or interest in First Nations lands must rest with Canada.

2. Extinguishment and Arbitrary Categories

The policy is based on the false assumptions that First Nations' titles to their lands were extinguished by the treaties. This is clearly wrong. First Nations are not prepared to extinguish any of their rights in their traditional territories for any amount.

The arbitrary distinction between Comprehensive Claims and Specific Claims is based on the false assumption as well. All issues available for negotiation under the Comprehensive Claims policy, including Self Government, should also be available for negotiation in the Specific Claims forum. This distinction has also operated to deny many claims (Rights Assertions) by First Nations since the underlying title has not been surrendered and should be dealt with on the same basis as comprehensive claims.

3.Conflict of Interest

The federal government acts as defendant, judge, and jury which puts it into a conflict of interest situation. The Deputy Minister makes the Funding Decisions and also decides the Validity and Settlement Value of any Claim. This conflict is all the more evident because of the fiduciary role and responsibility of the Crown to protect the interests of the First Nations. One of the parties in a dispute should not be allowed to control and decide the outcome of the process.

4. Limited Alternatives and Technical Defenses

First Nations have only one process - specific claims - by which they can address their rights and grievances. They can ask the Specific Claims Commission to rule on questions of validity and compensation once their position has been rejected by the federal government; however, the Claims Commission can only recommend to the very government who committed the injustice.

The only other option is to go to court, which is really no alternative. Canadian courts are highly adversarial and base their decisions on precedents which in many cases did not involve First Nations. Canadian Courts do not understand aboriginal concepts of law and they are expensive in terms of time, money and people.

Courts have also shown an inability to deal with the larger social, cultural and political issues often raised by First Nations in land rights negotiations. They have great difficulty in recognizing the special attachment and value that the land holds for First Nations. And finally, Canadian courts are still the courts of one of the parties in the dispute.

If First Nations got o court, Canada has stated that it will use technical and time limitation defenses in spite of the fact that First Nations could not legally pursue land claims until as recently as 1951.

5. Standards of Validity - ALawful Obligation

The criteria for determining validity of land claims or land rights assertions is based on totally arbitrary, self serving and undefined policy of Alawful obligation which dates back to Canada's 1969 White Paper Policy but much has changed since that time in the recognition of First Nations legal rights. Aboriginal title has been recognized, aboriginal and Treaty Rights are protected in the constitution and the Supreme Court has recognized a fiduciary trust obligation on the part of the federal government. Also, the inherent right to self government is supposed to be the Federal Policy of the day. It is time for Canada to update its Validity Standard based on contemporary aboriginal law and government policy.

Lawful obligation has come to mean in practice that a First Nations Land Rights assertion or claim is valid only if, in the opinion of a Department of Justice lawyer, the Crown would lose the case in Court. This standard is simply meant to minimize government liability and is not based on standards of natural justice. It automatically blocks First Nations from seeking redress for breaches of the promises and obligations contained in the treaties such as guarantees of hunting, fishing, trapping and gathering right. It also ignores of treaties as understood by First Nations and protected in the Constitution.

6. Rules of Evidence

First Nations have unique traditions of recording history which are equally valid and precise as the written history used in courts. First Nations' recording of history included the use of customs such as wampum belts ans strings, traditional teachings and first hand accounts passed on orally from generation to generation. First Nations must be allowed to use their traditional methods of recording Historical events to support and prove a valid land rights assertion (claim).

7. Disclosure

First Nations are expected to present the legal basis for a claim; however, there is no such reciprocal duty on the part of the Crown. The legal opinions that are provided by the Department of Justice, which form the basis for the rejection of a claim, are not even shared with the First Nation once the Claim is rejected.

8. Funding for Claimants

First Nations have very limited access to financial resources to develop and present their land rights assertions. Funding is currently determined and provided to First Nations by the federal government in the form of a loan once First Nations claims are accepted for negotiation. The amount of funding made available to First Nations can dramatically affect the quality of the claim put forward. The federal role of determining funding levels again represented a major conflict of interest. If the federal government wants a claim to go away all they have to do is simply stop funding it.

9. Slowness of the Process

The entire process is unreasonably slow, At any stage of the process the First Nations' claims can be put on hold for years without valid explanations or reasons. Once a claim is accepted for negotiation, there are often further delays in negotiations for compensation.

10. Compensation Criteria

The claims policy uses arbitrary standards such as Adegree of doubt, Adiscounting A and Aspecial value to the owner. If, in the opinion of the Crown negotiators, there is a degree of doubt as the status of the land, the compensation offered will also be lowered based on the Justice lawyers' opinions' of the chances of success had the claim gone to court. Finally, no additional compensation will be offered based on the special value of the land to the owner.

This would automatically rule out all First Nations have with the land and the special value it holds for them collectively.

11. Interim Measures

Currently there is nothing stopping the federal or provincial governments from disposing of, selling, degrading or destroying the First Nations land or resources which are the object or subject of the claim.

Ontario First Nations' Proposal for a New Process

The ALand Claims process must have a different name to reflect the fact that First Nations are the original owners of this country such as Land Rights Resolution or Land Rights Implementation.

The burden of proving title, ownership or legal interest must shift to the federal and provincial governments. If there is any doubt as to the little to the lands and resources, then the benefit of the doubt must fall to the original owners - the First Nations. This Principle has been affirmed many times by the Supreme Court of Canada. European settlers arrived here with no land through the invalid doctrines of discovery, occupation, conquest, papal or royal grant or land cession.

The following Principles must be accepted by the Federal Government to guide the structure, implementation and operation of a new Land Rights Policy and Process:

1. The Federal and Provincial governments must be accountable for their past actions. They must shoulder the burden of proof and clearly demonstrate that their conduct was consistent with legal and equitable obligations. They must accept full liability and responsibility to correct and remedy past injuries as quickly as possible. The remedies will be negotiated with First Nations in this new process. Government conduct throughout the process and implementation of this policy must not be adversarial and must maintain the highest standards to uphold the honour and integrity of the Crown as stipulated by the Supreme Court of Canada.

2. First Nations have existed in this country since time immemorial. As sovereign nations they continue to hold Title to the lands, waters and resources of Canada. First Nations aboriginal title continues and cannot be extinguished.

3. The federal Land Rights Policy must be developed with the full consent of First Nations. First Nations must participate in the negotiation and the development of any policies affecting them as full equal partners.

4. The Treaties, Royal Proclamation and Canadian Constitution recognize First Nations title to all lands and resources. The Royal Proclamation set down a Treaty-making process by which First Nations and the Crown could negotiate the terms of their co-existence ad share the lands, waters and resources of this country. No extinguishment of land or resource rights title will be required to settle outstanding land rights grievances and claims.

5. The Treaties are an explicit Crown recognition of the self-governing, self-determining and self government continue. First Nations will negotiate their relationships with Canada and the implementation of the Treaties, including an equitable share of the revenues made from past and future use, occupation, development and exploitation of First Nations lands, waters and resources.

6. All Treaties, whether pre- or post-confederation are equally valid and bind both the First Nation and the Crown to honour their true spirit and intent as understood by First Nation. The Crown is legally obliged to protect and fulfil both the specific terms of all Treaties as well as the implicit terms and conditions of all Treaties.

7. Provincial Governments have been major beneficiaries of the treaties and they must acknowledge their Crown fiduciary obligations. Where required, and at the request of First Nations, they must participate in the process to fulfil their fiduciary obligations.

8. The process must be flexible enough to accommodate the diversity of First Nations. It must also be capable of dealing with and resolving the full range of treaty and aboriginal rights issues identified by First Nations.

9. There can be no arbitrary distinction or classification of land rights assertions such as Specific or Comprehensive. The same standards must apply in every geographical area in Canada. All First Nations can demonstrate traditional territories.

10. First Nations will retain the right to access other processes, domestic and international, to seek redress of their grievances and implementation of their rights.

11. The absence of a Treaty or agreement between First Nations and the Crown means that full aboriginal title to all lands and resources in the particular First Nations' territory continues to exist under their full jurisdiction and control.

12. Negotiations must be conducted in the utmost good faith, to highest standards of a fiduciary so as to uphold the honour of the Crown. Good faith can be demonstrated by governments by the provision of adequate human and financial resources to ensure effective and efficient negotiations.

13. Federal and Provincial governments shall implement interim measures t ensure that no land, waters, resources or property which is the subject of negotiations or could form part of the remedy of compensation sought by First Nations, will be alienated, adversely affected to otherwise disposed of during negotiations.

14. The Statutes of Limitation and the doctrine of laches will not apply to any aspect of the resolution of Aboriginal of Treaty rights either in negotiation or litigation.

15. Rules of evidence will permit the customary and oral evidence and testimony of First Nations peoples. This evidence will be given the same weight documentation. In all cases elders chosen by the respective First Nation will be considered expert witnesses relating to any aspect of treaty interpretation. Any decision making body shall conduct its hearing or evidence gathering according to the practices and protocols of the affected First Nation. All processes to receive oral evidence or testimony shall be conducted at location of the First Nation community according to the practices and procedures of the First Nation.

16. All issues affecting inherent, aboriginal or treaty Rights including but not limited to land, environment, waters, resources, compensation and governmental and governmental jurisdiction are open for negotiation between the First Nation and the Government of Canada.

17. The federal and provincial governments shall make best efforts to restore First Nations settlement lands to their original pristine state. The cost of restoring First Nations settlement lands to their original state shall be assumed by the federal and provincial governments. These costs shall not be deducted from any settlement arrived at with a First Nation nor be factored into any settlement offer or final settlement.

18. The federal conflict of interest will be ended by removing their role as judge or jury. These roles will be given to an independent body. The negotiation process shall be overseen by the independent Tribunal or Commission. Its roles will include, but not be limited to the following:

• ensure a fair and speedy process,
• assist the parties to remove obstacles and impasses,
• funding, and
• monitor and report on progress.

19. The compensation that can be provided to First Nations will be expanded to any matter proposed by First Nations including return of traditional land, environmental reclamation and restoration of First Nations lands, financial compensation for loss and past use, access to resource revenue sharing and co-management of traditional territories, environmental protection and other governmental jurisdictions, etc.