consolidated guide to the government of canada's approach to modern treaty negotiations

8/13/2019 Consolidated Guide to the Government of Canada's Approach to Modern Treaty Negotiations

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Consolidated Guide to the Government o Canada s Approach toModern Treaty Negotiations

November, 2013Ref/ects status o Canada's Comprehensive and Claims Policy as o Spring 2013

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Table of ContentsIntroduction

1. Purpose o the Consolidated Guide2. Format o the Consolidated Guide

SECTION 1 - The Evolving Context for Modern Treaty Negotiations1. Canada's Tradition o Treaty Making2. Canada's Comprehensive Land Claims Policy3. Constitutional and Legal Context4. Inherent Right o Self-Government in Modern Treaty Negotiations5. Approaches Other Than Modern Treaties for Addressing Section 35Rights

5.1 Consultation and Accommodation5.2 Operational Certainty through Non Treaty Agreements6. Continuing Role o Canada's Policy Frameworks for Modern TreatyNegotiations

SECTION 2 - Canada's Policy Approach to Modern Treaty Negotiations1. Objectives o Modern Treaty Negotiations2. Scope o Negotiations

2.1 Certainty2.2 Certainty with Respect to Non Land Related Rights2.3 Incremental Approaches to Achieving Certainty During Treaty Negotiations2.4 Non Treaty Processes for Achieving Operational Certainty2.5 Lands2.6 Treaty Settlement Lands2.7 Shared Territories/Overlapping Claims2.8 Trans Boundary Claims2.9 Offshore Areas2.10 Wildlife2.11 Subsurface Rights2.12 Resource Revenue Sharing2.13 Environmental Management2.14 Compensation2.15 Management of Settlement Assets2.16 Programs2.17 Taxation2.18 Beneficiaries


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3 Self-Government3 1 Canada s 1987 Policy Approach to Self-Government3.2 Recognition o the Inherent Right o Self-Government 19953.3 Inclusion o Self-Government in Comprehensive Land Claims Agreements

4. Involvement o Provincial and Territorial Governments5 Protection o Aboriginal and Non-Aboriginal Interests

1 1 Aboriginal Rights and Interests1.2 Protection o Aboriginal Rights and Interests During Negotiations1.3 Gender Equality1.4 Public and Third Party Interests1.5 Public Access6 Implementation Amendment and Dispute Resolution

6 1 Implementation6.2 Amendment6.3 Dispute Resolution

SEC1 ION 3 - Modem Treaty Negotiation Processes and Procedures1 Modem Treaty Negotiation Process

1 1 The British Columbia Treaty Process1.2 The Process for Modern Treaty Negotiations Outside o British Columbiaa. Statement o Claimb Acceptance o Claimsc. Preliminary Negotiationsd. Framework Agreementse Agreements-in-Principlef Final Agreementsg. Implementationh Modern Treaties Steering Committee

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Introduction1. Purpose of the Consolidated GuideThis document represents the Government of Canada s approach to thenegotiation of comprehensive land claim agreements (modem treaties) as ofSpring 2013, The Guide is meant to inform Canada s approach to the work of theSenior Oversight Committee for Comprehensive Claims (SOC), as well as FirstNations that may pursue engagement with Canada. The Guide is not a productof the SOC nor does it reflect ny of the work of the SOC.In 1973, the first federal comprehensive land claim policy was announced withthe intention of negotiating the settlement of AbOriginal land claims withAboriginal people who continue to use and occupy traditional lands, and whoseAboriginal rights and title have not been dealt with by treaty or other lawfulmeans. The policy was reaffirmed with the publication of n All Fairness: A NativeClaims Policy Comprehensive Claims 1981).In 1986, Canada revised the comprehensive land claims policy to provide for abroader scope of negotiable subject matters and presented alternatives to thepractice of requiring blanket extinguishment of Aboriginal rights. The revisedpolicy is set out n a publication entitled Comprehensive Land Claims Policy.In 1993, the Federal Policy for the Settlement of Native Claims was publishedwhich further described the origins of Canada s comprehensive land claimspolicy, how the policy was being applied, the status of negotiations, and progresson the establishment of a British Columbia treaty process.Since that time, Canada s policy approach to modem treaty negotiations hasundergone significant evolution n response to jurisprudence and through thevarious negotiation mandates that have been designed to adapt the policy todifferent circumstances across the country.This document comprehensively outlines Canada s current approach to thenegotiation of modem treaties, reflecting the significant changes that haveoccurred since publication of the Comprehensive Land Claims Policy 1986).This document recognizes that Canada s policy approach is continuing to evolveas the federal government works with Aboriginal people and provincial andterritorial governments in different regions of Canada.Since 1995, modem treaties may also incorporate self-governmentarrangements. Consequently, Canada s approach to modern treaty negotiationsis grounded in two separate policy documents:

Comprehensive Land Claims Policy 1986); and

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The Govemment of Canada's Approach to Implementation of the InherentRight nd the Negotiation ofAboriginal e l f ~ o v e m m e n t (1995) (the"Inherent Right PolicyjConsequently, the term "modem treaties" refers both to comprehensive landclaim agreements that include self-government as well as to those that do not.(This document does not address agreements that deal solely with selfgovernment. )It should be noted that this document focuses on the broad policy framework formodem treaty negotiations. It is not intended to encapsulate all the specificissues and the many variations in policy applications that have been incorporatedin the more than 25 modem treaties concluded to date. These agreementsprovide a wide range of precedents which further illustrate flexibility and evolutionin Canada's policy approach to comprehensive land claim negotiations.2. Format of the Consolidated GuideThe Consolidated Guide has three sections:Section 1 - The Evolving Context for Modem Treaty Negotiations outlines theorigin of modem treaty negotiations and the changing legal, constitutional. andoperational environment for treaty negotiations.Section 2 - Canada's Policy Approach to Modem Treaty Negotiations sets outthe key elements of Canada's policy framework for participating in modem treatynegotiations. This section follows the format of the Comprehensive Land ClaimsPolicy (1986) publication which contains five main sections:

1. Objectives;2. Scope of Negotiations;3. Self-Government;4. Involvement of Provincial and Territorial Governments;5. Protection of Aboriginal and non-Aboriginal Interests; and

An additional section (6) has been added in this document, entitledImplementation, Amendment and Dispute Resolution.This document indicates how Canada's policy approach has evolved in relationto each of these elements. All new narrative text is printed in regular font, andtext retained from the Comprehensive Land Claims Policy (1986) and theInherent Right Policy (1995) is printed in italics with quotation marks.Section 3 - Modem Treaty Negotiation Processes and Procedures describes theBritish Columbia Treaty process and the process for modem treaty negotiationsin other parts of Canada. It also sets out various procedural matters relating to


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modem treaty negotiatcns. Again, a new narrative is printed in regularfont andtext retained from the omprehensive Land laims Policy 1986) and theInherent Right Policy 1995) is printed in italics with quotation marks.


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SECTIQN 1 - The Evolving Context or Modem Treaty Negotiations

1. Canada's Tradition of Treaty MakingThe relationships between the Aboriginal people o Canada, the Crown (federal,provincial and territorial governments) and non-Aboriginal Canadians have beenand continue to be a significant facet o the history and evolution o Canada.Treaty making has been a key process through which Aboriginal people and theCrown have shaped and managed those relationships.Treaties o peace and friendship and economic and military alliances withAboriginal people were critical elements o early colonial settlement in what isnow Canada, establishing a framework for coexistence.In 1763, the British Crown issued a Royal Proclamation prohibiting settlers frompurchasing lands which were reserved for First Nations peoples and which hadnot been acquired by the Crown. The Royal Proclamation provided thefoundation for the negotiation o pre-Confederation treaties in Ontario addressingAboriginal land-related rights and the ongoing relationship between the Crownand Aboriginal people. Following Confederation, the Government o Canadacontinued the treaty-making process across the Prairies, in northwestern Ontario,and in parts o British Columbia and the present-day Northwest Territories.Although this historic treaty-making process largely drew to a close in the 1920s,Aboriginal land-related rights remained unaddressed in extensive parts oCanada.2 Canada's Comprehensive Land Claims PolicyIn 1973, in response the Supreme Court o Canada's decision in Galder et al. vAttorney-General ofBritish Columbia [1973] S.C.R. 313, the Government oCanada resumed the tradition o treaty making with the adoption o acomprehensive land claims policy.The 1973 comprehensive land claims policy indicated that Canada was preparedto negotiate comprehensive land claims with Aboriginal groups where theirtraditional and continuing interests in the lands could be established and wheretheir rights and interests had not been addressed by treaty or through other legalmeans.South o the 60th parallel, most o the land and resources subject to modemtreaty negotiations are under provincial u r i s d i c t i o n requiring the participation oprovincial governments. North o the 60 h parallel, territorial governments alsoparticipate in modem treaty negotiations.

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FromtheG()vemmentof Canada's perspective, the primary ()bjective of modemtreaty negotiations is to achieve certainty of rights to ownership, use andmanagementof lands and resources. Through the negotiation of modern treaties,governments and Aboriginal parties resolve legal uncertainty over Aboriginalland-related rights and claims by clearly and exhaustively setting out the landrelated rights and benefits that the Aboriginal party will possess following thecoming into effect of the agreement.In so doing, modern treaties provide certainty of rights, certainty for governmentmanagement and disposition of lands and resources, certainty for the rights ofnon-Aboriginal Canadians within the settlement area, as well the potential forgreater economic opportunities for Aboriginal people. Modern treaties benefit allCanadians by providing a secure climate for economic and resourcedevelopment and land use.Since 1973, Canada and Aboriginal people, with the participation of appropriateprovincial and territorial governments, have concluded over 25 comprehensiveland claim agreements. These modern treaties include over 90 First Nation andInuit communities with over 70,000 members. Geographically, they cover over40% of Canada's land mass, including: northern Quebec, Nunavut, most ofYukon and the Northwest Territories, the northern portion of Labrador, andportions of British Columbia.Presently, comprehensive land claims remain outstanding in approximately 20%of Canada, including most of British Columbia, portions of Yukon and theNorthwest Territories, the Ottawa Valley in Ontario, significant portions ofQuebec, the Maritimes and southern Labrador. The majority of unresolved claimsare south of the 60 th parallel in provinces.3. Constitutional and Legal ContextModern treaty negotiations are informed by the recognition and affirmation ofAboriginal and treaty rights as set out in section 35 of the Constitution Act 1982as well as by court decisions that have interpreted section 35.Section 35 1 ) of the Constitution Act 1982 states: The existing aboriginal andtreaty rights of the aboriginal peoples of Canada are hereby recognized andaffirmed. In 1983, section 35 was amended to confirm that the treaty rightsencompassed by subsection (1) include rights that exist by way of land claimsagreements or may be so acquired.Section 35 (1) provides the constitutional framework acknowledging that, beforethe arrival of Europeans, Aboriginal people lived on the land in distinctivesocieties, with their own practices, traditions and cultures.

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The inclusion of Section 35(1) in the Constitution Act 1982 means that after1982 the Crown can no longer extinguish Aboriginal or treaty rights unilaterally.The Supreme Court of Canada has affirmed that the fundamental objective ofsection 5 is the reconciliation of Aboriginal peoples and non-Aboriginal peoplesand their respective claims, interests and ambitions. Reconciliation is anongoing process through which Aboriginal people and the Crown establish andmaintain a framework for living together.Since the advent of section 35 in 1982, the Supreme Court of Canada hasprovided direction on the nature, content and legal tests for Aboriginal rights,including Aboriginal title. Aboriginal rights are collective rights, and they arebased on continuity with pre-contact practices, customs and traditions that areintegral to the distinctive culture of the group There is a spectrum of Aboriginalrights and they encompass cultural rights, site-specific rights, such as hunting orfishing rights, and Aboriginal title.Aboriginal title requires continuity with the exclusive physical occupation of landprior to sovereignty. Aboriginal title is a right to the land itself, including the rightto use the lands for non-traditional purposes, although Aboriginal title also entailscertain limitations on the use and disposition of the lands.Which Aboriginal rights are held by a particular Aboriginal group in relation toparticular lands depends upon the nature, extent and continuity of that group'spresence on those lands, and upon the group's history of traditional practicesthere.The courts have also provided guidance on the nature and content ofgovernment duties in relation to s.35 rights.Aboriginal and treaty rights are not absolute and government may infringe theserights. However, the infringement must be justified, which means that it musthave a valid legislative objective that is attained in a manner consistent with thehonour of the Crown.As well, government has a duty to consult, and if appropriate, accommodate,when it has knowledge of established or asserted Aboriginal or treaty rights andcontemplates conduct which might adversely affect those rights. The specificnature of this duty depends on the circumstances. The duty is grounded in thehonour of the Crown.In making treaties and in interpreting and implementing them, the Crown mustact with honour and integrity_ Negotiations must be guided by compromise,reasonableness and good faith on all sides. Reconciliation implies adjustmentand accommodation by all parties and a balancing of interests.


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The Supreme Court has played a major role in clarifying the content and natureof Aboriginal and treaty rights, and it has also provided significant guidance forbalancing and reconciling the section 35 rights of Aboriginal groups with therights and interests of non-Aboriginals and of Canadian society s a whole.However, the Court has indicated that reconciliation in respect to s.35 rightsshould take place largely outside the courts through essentially politicalprocesses of negotiations, guided by the judicial principles that the Court hasenunciated. In particular, the Supreme Court has encouraged treaty negotiationas the means of achieving the constitutional objective of reconciliation.All of this provides an important legal context for modern treaty negotiations andfor the implementation of the resulting agreements. Much room remains forpolicy choices about the relationships between the Crown and Aboriginal peopleand between Aboriginal people and other Canadians. Parties to negotiations canset aside differing views on the nature scope and location of Aboriginal rights in aparticular context and can define the modern expression of s. 35 rights in atreaty.4. The Inherent Right of Self-Government in Modern Treaty NegotiationsIn 1995, the Government of Canada recognized the inherent right of selfgovernment s an existing Aboriginal right within section 35 of the ConstitutionAct 1982. In so doing, it established a policy framework for the negotiation ofpractical arrangements for the implementation of self-government within theCanadian constitutional framework.The Inherent Right Policy (1995) provides that self-government arrangementscan be negotiated as part of a modern treaty or in other agreements linked to orseparate from modern treaties.The Inherent Right Policy (1995) has considerably expanded the scope ofmodern treaty negotiations to include provision for new Aboriginal governmentstructures, jurisdiction over lands and a wide range of other issues. It has alsoexpanded financial relationships to allow for the provision of programs andservices in Aboriginal communities.The Inherent Right Policy (1995) has reinforced the political nature of moderntreaty negotiations, with negotiations aimed at providing predictability and clarityfor ongoing intergovernmental relationships and the application of laws.5. Approaches Other Than Modem Treaties for Addressing Section 35RightsModern treaty negotiations have increasingly become one in a continuum ofapproaches for addressing Aboriginal land-related rights and claims. Canada s

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approach t modem treaty negotiations is currently adjusting to the changinglegal and operational environment.

5.1 Consultation and AccommodationThe 2004 Supreme Court of Canada decisions in Haida Nation v BritishColumbia Minister ofForests) and Taku River Tlingit First Nation v BritishColumbia Project Assessment Director) determined that the Crown has a duty toconsult and where appropriate accommodate when contemplating actionswhich might adversely impact established or asserted Aboriginal rights. This dutymay be triggered whether or not modem treaty negotiations are in progress.Canada has developed guidelines and processes to fulfill the duty to consult [seeAboriginal Consultation nd Accommodation: Updated Guidelines for FederalOfficials to Fulfill the Duty to Consult, March 2011].http://www.aadnc-aandc.gc.ca/eng/1100100014664/11 001 00014675Provincial and territorial governments have also been active in developingprocesses and measures to address their duties to consult and accommodate inmanaging lands and resolJrces subject to Aboriginal claims.Where treaty negotiations are in progress federal negotiators may work withAboriginal parties and prOVincial/territorial governments to develop consultationprotocols to coordinate and facilitate other consultations in the future.

5.20perat ional Certainty through Non-Treaty AgreementsGiven the length of time required to negotiate modern treaties and the fact thatmany Aboriginal groups with outstanding land claims are not currentlyparticipating in modern treaty negotiations there has been increasing foclJs onthe use of non-treaty agreements as a means of achieving operational certaintyfor land and resource management and for development projects during thecourse of or in the absence of treaty negotiations.Non-treaty agreements usually take the form of a contract providing a predictableenvironment for resource management or specific development projects. Theagreements are concluded without comprehensively addressing the existing orasserted Aboriginal rights or claims.Current examples of non-treaty agreements include agreements betweenAboriginal parties and governments providing for Aboriginal participation in landuse planning and regulatory processes or sharing of revenues from resourcedevelopment. hey also include impact and benefits agreements with resourcedevelopment companies relating to specific development projects. Canada

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and/or the relevant provinciallterritorial government m yor may notbe a party tothese agreements.Consultation processes and accommodation measures with governments, andimpact and benefit agreements with private sector developers, provide theopportunity for Aboriginal parties to secure participation in resource managementand economic benefits from development projects separate from comprehensiveland claim negotiations.6. Continuing Role of Canada's Policy Frameworks for Modem TreatyNegotiationsThrough its comprehensive land claims policies and its nherent Right Policy(1995), Canada has secured the participation of provincial and territorialgovernments and concluded over 25 modem treaties with Aboriginal people.Canada remains committed to maintaining effective processes for the negotiationof modem treaties as a means of achieving a just settlement of Aboriginal landclaims and an enduring reconciliation of rights.In participating in modern treaty negotiations, all parties come to the negotiationtable with their respective interests, claims, and legal rights. Negotiation towardmodern treaties proceeds without prejudice to the legal rights of the parties.Modern treaty negotiations do not focus on defining the legal content or extent ofexisting Aboriginal rights; rather, they focus on reconciliation of rights andinterests by clearly setting out a full range of modern rights and benefits that theAboriginal party will exercise and enjoy and the obligations that governments willassume when a comprehensive land claims agreement comes into effect.In addition to being guided by Canada's policy framework, federal negotiatorsreceive mandates from Cabinet providing more specific direction for applyingthese poliCies in particular negotiations, having regard to a variety of factors suchas the location and size of the claim, the objectives of the Aboriginal party andthe relevant provincial and/or territorial governments, as well as the interests ofother parties affected by the negotiations. All parties share responsibility for thesuccess or failure of the negotiations.Canada recognizes that one-size-fits-all approaches to modem treatynegotiations are not feasible. Canada's policy approaches and mandates havedemonstrated flexibility in achieving modem treaties adapted to different regionsof Canada, the circumstances of specific Aboriginal groups, the circumstances ofindividual provinces and territories, as well as developments in jurisprudence.Canada continues to pursue the evolution and responsiveness of itscomprehensive claims policies with its negotiation partners, and to recommendmore effective policies and processes for addressing section 35 rights.

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SECTION Canada's eolicy Approach t Modem Treaty Negotiations

1. Objectives o Modem Treaty NegotiationsCanada remains committed to maintaining effective processes for the negotiationof modem treaties as a means of achieving fair and equitable agreements onAboriginal land claims and an enduring reconciliation of rights and interests.Modern treaties establish a mutually agreed-upon and enduring framework forreconciliation and ongoing relationships between the Crown and Aboriginalpeople. The rights set out in modern treaties are precise, exhaustive, andconstitutionally protected. As a result:

Modern treaties provide lasting certainty regarding the parties' respectiverights to ownership, use and management of lands and resources througha fair and final settlement of Aboriginal land claims, and Self-government arrangements in modem treaties empower Aboriginalcommunities to govern their own affairs in a manner which providespredictability and clarity for intergovernmental relations and the applicationof laws.

Such agreements must be equitable to Aboriginal people nd other Canadians,nd must represent final settlements of land claims.

The purpose ofcomprehensive land claim agreements is to provide certainty ndclarity of rights to ownership nd use of land nd resources in those areas ofCanada where aboriginal title h s not been dealt with by treaty or superseded bylaw. Final settlements must therefore result in certainty nd predictabili ty withrespect to the use nd disposition of lands affected by the settlements. When theagreement comes into effect, certainty will be established as to ownership rightsnd the application of laws. Predictability will be established for the future as to

how the applicable provisions m y be changed nd in what circumstances.However, it is recognized that land claims negotiations are more than real estatetransactions. In defining their relationships, aboriginal people nd theGovernment of Canada will want to ensure that the continuing interests ofclaimants in settlement areas are recognized. This will encourage self-reliance

nd economic development s well s cultural nd social well-being. Land claimsnegotiations should look to the future nd should provide a means wherebyAboriginal groups nd the federal government can pursue shared objectives suchas self-government and economic development.The federal government will also seek to ensure consistency between thecomprehensive land claims policy nd other federal poliCies for Aboriginalpeople, for the Northwest Territories, Nunavut nd Yukon nd for Canada s a

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whole. In addition, an equitable application of the policy means that the overallfairness of settlements must be ensured.2. Scope of NegotiationsAs the main purpose of comprehensive land claim negotiations is to clarify rightsin relation to the lands nd resources, land and resource related topics willprovide the principal focus ofnegotiations. However, claim settlements are also ameans whereby Aboriginal groups can obtain some of the tools to captureeconomic opportunities nd establish the means whereby they can makedecisions about future renewable resource use. Other issues related to land ndrenewable resource management, as well as the interests ofother affectedparties, will also be an integral p rt ofnegotiations.

The Government ofCanada is therefore prepared to address a range of issueswithin the framework of the policy. These can include land selection, self-government, environmental management, resource revenue sharing, hunting,fishing nd trapping rights, nd other topiCS The precise choice of topics that theparties agree to discuss in negotiations, nd the parameters of thesenegotiations, will be identified in individual cases in framework agreements,which will e negotiated in the preliminary negotiations.

2 1 ertaintyThe Comprehensive Land Claims Policy (1986) dealt with this subject under theheading of Alternatives to Extinguishment , reflecting a major preoccupation ofthe 1986 policy review. This section has been rewritten to reflect the significantevolution that has occurred in approaches to achieving certainty in modern treatynegotiations.A fundamental objective of modern treaties is to provide clear and lastingcertainty with respect to the ownership, use and management of lands andresources. Where self-government provisions are included in modern treaties,certainty also encompasses requirements for predictability and clarity for ongoingintergovernmental relations and application of laws. Treaties are intended to beenduring arrangements; they create mutually binding obligations ndcommitments which are constitutionally protected.Certainty is achieved by ensuring that the proviSions of the treaty clearly andexhaustively set out the respective rights and obligations of the treaty parties,and clearly address the rights and interests of other Aboriginal and nonAboriginal people within the treaty settlement area.Certainty also requires legal techniques for ensuring that the treaty is legallyenforceable and that it can be relied on by all parties s an enduringreconciliation of rights with respect to lands and resources and any other subject

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matters dealt with in the treaty and a final resolution o Aboriginal claims withrespect to those rights.Modern treaties include a number o provisions which provide certainty to theAboriginal party that the agreement is legally enforceable and binding on theCrown and on third parties:

It is specified that the agreement is a treaty within the meaning o section35 o the Constitution Act, 1982, providing the Aboriginal party withconstitutional protection o their rights as set out in the treaty. The Govemment accepts that the treaty is binding on the Crown andagrees that it will recommend to Parliament settlement legislation givingstatutory effect to the treaty and making the treaty binding on all persons. Provisions o the treaty have priority over federal settlement legislation,and federal settlement legislation takes priority over all other federallegislation.

Similarly, modem treaties must include provisions binding the Aboriginal party tothe treaty, confirming their agreement that the treaty constitutes: a full statement o the Aboriginal party's exercisable section 35 rights withrespect to lands and resources; a final settlement o the Aboriginal party's claims regarding such rights,including claims for past infringement o Aboriginal land related rights; and a full settlement with respect to any non-land related rights addressed inthe treaty.

The legal techniques for achieving this outcome have undergone significantevolution during the course o modern treaty making since 1973.The legal technique initially used to achieve certainty under the comprehensiveland claims policy was borrowed from the approach used in the negotiation andconclusion o historic treaties dealing with Aboriginal land-related rights. Inexchange for the rights and benefits set out in the comprehensive land claimagreement, the Aboriginal party agreed to "cede, release and surrender" itsAboriginal rights in and to lands and resources.In the first modern treaties concluded [The James ay and Northern QuebecAgreement o 1975, the Northeastern Quebec Agreement o 1978 and theInuvialuit Final Agreement o 1984], the cede, release and surrender provisionswere reinforced by a legislative extinguishment o Aboriginal rights. Legislativeextinguishment o rights has not been used with any subsequent modern treaty.The Comprehensive Land Claims Policy (1986) identified two legal techniquesor achieving certainty:

the cession and surrender o Aboriginal title throughout the settlementarea, or

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the cession ndsurrenderofAboriginal title in non-reserved areas whileallowing any Aboriginal title that exists to continue in specified or reservedareas.The latter technique was used in comprehensive land claim agreements inYukon, where First Nations retained any existing Aboriginal title on the treatysettlement lands selected by First Nations.Since 2000, Canada, in cooperation with Aboriginal parties and partiCipatingprovincial and territorial govemments, has developed and approved alternatelegal techniques for achieving certainty that modern treaties constitute full andfinal resolution of Aboriginal land claims.These new legal certainty techniques abandon approaches involving theextinguishment or surrender of rights in favor of approaches involvingcontinuation and reconciliation of rights. These new approaches include:

A modification of rights technique: Continuation of Aboriginal rights asmodified in the treaty. This technique was first developed for use in theNisga a Final Agreement concluded in 2000. A non-assertion technique: Commitment that the Aboriginal party will notassert or exercise ny Aboriginal rights not set out in the Treaty. Thistechnique was first used in the Tlicho Agreement concluded in 2003. A variation of the modification of rights technique: The Eeyou Marine

Regional Land Claim Agreement concluded in 2010 provides thatAboriginal rights are continued to the extent that they are identical to therights set out in the Agreement or continued as modified to the extent thatthey differ from the rights set out in the Agreement.The "modification of rights technique" and the "non-assertion technique" havebeen used with some refinement in other modern treaty agreements. Exploratorydiscussions continue on other potential certainty models.

, 2.2 Certainty With Respect to Non Land Related RightsIn addition to provisions dealing with lands and resources, modern treaties canalso include self-government provisions, which may cover many non land-relatedrights, such as jurisdiction over education and social and cultural matters.Two options have been approved for achieving certainty with respect to non landrelated Aboriginal rights:

The treaty can constitute a full settlement with respect to all non landrelated rights using one of the certainty techniques described above, or

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Thetreatycanconstituteafullsettlementwithrespectto thosenonlandrelated'rightsaddressedinthetreaty,withanordertyprocessor bringingadditionalnonland-relatedrightsintothetreaty.Additionalnonlandrelatedrightsmaybebroughtintothetreatybyagreemento thepartiesorinresponsetoacourtdecisionrecognizinganadditionalAboriginalnonland-relatedright.Noadditionalnonland-relatedrightcanbeexerciseduntilitisincorporated intothetreaty,providingaconsistentframework.fortheexerciseo rights.

2.3lncrementalApproachesto AchievingCertaintyDuringTreatyNegotiationsInterimMeasuresAppropriate interim measures m y be established to protect Aboriginal interestswhile the claim is being negotiated. These measures will be identified n initialnegotiating mandates in specif ic cases.Treaty-RelatedMeasuresCanadahasestablishedauthoritiesenablingfederalnegotiatorstonegotiatecertaintypeso treaty-relatedmeasurestopromotecooperativerelationsduringtreatynegotiations,toremovebarrierstoprogressinnegotiations,andtoprepareAboriginalpartiestoeventuallyimplementtreaties.Thesemeasurescanencompassfunding or Aboriginalparticipationinlandandresourcemanagementprocesses,economicdevelopmentstudies,developmento communityplansandgovernancemodels,andinterimprotectionor acquisitiono landsforeventualtreatysettlement.IncrementalTreatyAgreementsIncrementaltreatyagreementscanprovidefortheimplementationo certainnegotiatedelementso atreatyinadvanceo afinal,comprehensivetreatyagreement.Suchagreementswouldprovidestability or themanagementocertainlandsor resourcespendingtheconclusiono amoderntreaty.Incrementaltreatyagreementscouldbeimplementedascontractualagreementsforaspecifiedperiodor, insomecircumstances,asatreaty"installment",whichwilllaterbeintegratedintoamoderntreaty.Whilethefederalgovernmentissupportiveo theapproach,incrementaltreatyagreementshavetypicallybeenledbyprovincialgovernments.Todate,incrementaltreatyagreementsinBritishColumbiahavebeennegotiatedbilaterallybetweentheprovinceandFirstNations.Canadaisnotasignatorytotheseagreementsanddoesnotcontributedirectbenefitstotheincrementaltreatyagreements.Attheprovince'srequest,

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Canada has evaluated provincial proposals to cost-share land transfers on acase-by-case basis. Canada m y agree to cost-share the land transfers subjectto a treaty coming into effect, but will not if the land transfer serves a differentpurpose. In general, since most incremental treaty agreements are in regards tolands and resources that are within provincial jurisdictions, Canada has not beenthe lead government in negotiating incremental treaty agreements regardingthese matters.

2.4Non-Treaty Processes for Achieving Operational CertaintyConsultation and accommodation processes and non-treaty agreements canprovide operational certainty or predictability related to land and resourcemanagement and development during the course of modern treaty negotiationsor in the absence of treaty negotiations.Canada is examining linkages between modern treaty negotiations and otherprocesses for addressing AbOriginal land-related rights and claims, with a view toensuring appropriate coordination and overall equity in its approaches.

2.5 LandsThe land area claimed by an Aboriginal group will be a key subject for thenegotiations. 1 Agreements will clearly identify the geographic area to which theland claim agreement applies.

2.6 Treaty Settlement LandsTreaty settlement lands selected by Aboriginal parties '1or their continuing useshould be traditional terrestrial lands that are currently used and occupied.Treaties may recognize that the ownership of treaty settlement lands is linked tothe Aboriginal party's historic presence within their asserted traditional territory.Treaties will provide Aboriginal parties with secure title to treaty settlement lands.Treaties will include protections limiting expropriation or seizure of treatysettlement lands.Self-government treaty provisions set out the jurisdiction of Aboriginalgovernments over treaty settlement lands and provide clarity with respect to theapplication of Aboriginal, federal and provincial or territorial laws on thesettlement lands.

2.7Shared TerritorieslOverlapping ClaimsWhere more than one Aboriginal group utilizes common areas of lands andresources, Canada expects Aboriginal groups to make all reasonable efforts to

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agree on boundaries. resource access and land sharing arrangements toaddress their respective rights and claims.Where possible and practical Canada will provide reasonable assistance toAboriginal groups to assist them in achieving a resolution of their overlappingclaims. Such assistance may include help in obtaining mediation or arbitrationservices. In British Columbia the British Columbia Treaty Commission may alsohave a role n facilitating the resolution of overlapping claims.While Canada encourages Aboriginal groups to try and resolve their overlappingclaims issues of equal importance is the requirement that Canada andparticipating provincial or territorial governments concurrently ensure that theyfulfill their duty to consult and where appropriate accommodate when decisionsbeing made in treaty negotiations with one Aboriginal group may adverselyimpact the asserted or established Aboriginal or treaty rights of anotherAboriginal group. Canada will take appropriate measures to ensure that itsconSUltations are coordinated timely and meaningful and are conducted in goodfaith with the intention of substantially addressing the concerns of the Aboriginalgroups involved.

2 8Trans Boundary ClaimsIn cases where a claimant group currently utilizes resources in a province orterritory, other than that in which its communities are located, the range ofbenefits available to the group outside the province or territory of residence will

be determined by negotiation with the province or territory involved and with nyother Aboriginal groups which can establish competing claims to the land.The content of such negotiations will be identified in framework agreements.

2 90ffshore AreasIn m ny cases, the areas traditionally used by Aboriginal groups to pursue their

w y of life include offshore areas. In such cases, negotiations concerningharvesting rights in offshore areas will be conducted, to the extent possible, inaccordance with the same principles s those which apply to terrestrial areas.Participation in environmental management regimes nd resource revenue-sharing arrangements m y also be negotiated with respect to offshore areas.2 10 ildlife

The continuing economic, social nd cultural importance ofhunting, fishing ndtrapping for m ny Aboriginal communities is recognized by the federalgovernment. Accordingly modem treaties may provide for participation ofAboriginal parties n wildlife management processes.

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Settlementsmay provide preferential wildlife harvesting rights for beneficiarieson unoccupied Crown lands. There may be exclusive harvesting rights exercisedby settlement beneficiaries on selected lands, or preferential rights for particularspecies throughout the settlement area or within specified parts of the settlementarea. In all cases, settlements will clearly define the terms by which beneficiarieswill have access to wildlife resources.Unless otherwise provided for in terms ofsettlements, laws ofgeneral applicationrespecting hunting, fishing and trapping activities, including public safety andconservation measures, will apply to beneficiaries."

2 11 Subsurface Rights"Subsurface resources fall within either federal or provincial jurisdiction. In areasof federal jurisdiction, subsurface rights on some federal Crown lands and onsettlement lands held by beneficiaries may e provided through claimsettlements."Aboriginal ownership of "subsurface rights close to communities, or in criticalwildlife habitat areas, may serve s a way to avoid land-use conflict in key areas.Such subsurface rights may also, in appropriate circumstances, providebeneficiaries with the opportunity and incentives to partiCipate in and benefit fromresource development."

2.12 Resource Revenue Sharing"Many claimants live in areas of Canada where the development of nonrenewable resources is and will remain a major economic activity. In order thatbeneficiaries may share in the revenues from such developments," where thefederal government has responsibility with respect to natural resources it isprepared to negotiate resource revenue-sharing arrangements with claimantgroups. Such arrangements would provide a percentage of federal royaltiesderived from the extraction of resources in a settlement area, including offshoreareas.Resource revenue-sharing arrangements will not imply resource ownershiprights, and will not result in the establishment ofjoint management boards tomanage the subsurface and subsea resources. n addition, the federalgovernment will maintain responsibility for resource revenue instruments andmust maintain its ability to adjust the fiscal regime.Resource revenue sharing may be subject to limitations either by:

an absolute dollar; or a time cap ofnot less than 50 years from the first payment of the royaltyshare which arrangement will be renegotiable); or a reducing percentage offederal royalties generated, if any.

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Any negotiations or arrangements between the federal and territorialgovernments regarding possible resource revenue sharing must respect anyarrangements made in this regard through claim settlements. The federalgovernment will consult affected claimant groups regarding the implications forunresolved claims ofany proposed federal territorial arrangements on resourcerevenues.

2 13 Environmental ManagementSettlements are expected to recognize particular Aboriginal interests in relationto environmental o n e r n ~ particularly as these concerns relate to wildlifemanagement and the use of water and land. Provision for the exercise of suchinterests may be afforded through membership on advisory committees, boardsand similar bodies or through participation in government bodies that havedecision-making powers. Such arrangements must recognize that the

government has an overriding obligation to protect the interests ofall users, toensure resource conservation, to respect international agreements, and tomanage renewable resources within its jurisdiction.2 14 Compensation

Monetary compensation may comprise various forms of capital transfers,including cash, resource revenue sharing, or government bonds.Where applicable, the amount will be clearly defined in the agreement, and noadvance on the monetary compensation components of settlements will beprovided before final settlement is reached. he amount of compensation may beadjusted depending upon the other arrangements negotiated in settlementagreements. For example, the amount of cash compensation may be reduced inaccordance with arrangements concerning resource revenue sharing.Outstanding debts owed by the claimant group to the federal Crown will bededucted from final settlements.

2 15 Management o Settlement AssetsAboriginal governments and corporate structures provided for in settlementsmust be designed by claimant groups to provide for the protection andenhancement of settlement assets based on sound management practices anddemocratic control by the beneficiaries.

2 16 ProgramsBeneficiaries of land claims settlements will retain their eligibility for governmentprograms, except where an Aboriginal government creates a program which willreplace a particular federal government program Benefits received under such

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Legislation will be required to establish the scope.of law-making authority grantedto ny new Institutions nd bodies. Finally, s a matter ofpolicy, most aspects ofsuch arrangements will not receive constitutional protection unlessconstitutional amendment to this effect is in force.

The approach set out in the 1986 policy document was used as the basis forconcluding comprehensive land claim agreements and companion selfgovernment agreements in Yukon.The1986 policy approach reflected the fact that there were ongoing constitutionaldiscussions considering a specific amendment to the Canadian Constitution torecognize the inherent rig ;lt of Aboriginal self-government.

3.2 Recognition of the Inherent Right of Self-Government 1995In 1995, the Government of Canada recognized the inherent right of selfgovernment as an existing right within section 35 of the Constitution Act, 1982.Acknowledging that more than a decade of efforts had failed to achieve explicitrecognition of self-government through a constitutional amendment, Canada setout an approach to implementation of the inherent right that focused on reachingpractical and workable agreements on how self-government will be exercised,rather than trying to define it in abstract terms.Canada's policy framework for the implementation of the inherent right of selfgovernment is set out in the 1995 publication entitled Federal Policy Guide:Aboriginal Self-Government; The Government of Canada's Approach toImplementation of the Inherent Right nd the Negotiation ofAboriginal SelfGovernment. The document is commonly referred to as the Inherent Right Policy(1995).The Inherent Right Policy (1995) sets out an approach for negotiation of practicalself-government arrangements that operate within the framework of theCanadian Constitution. The scope of negotiations under the policy encompassesthe acknowledgment of: Aboriginal government structures; jurisdiction orlawmaking powers; provision of programs and services; and fiscal relations andimplementation processes.The Inherent Right Policy (1995) allows for a wide range of approaches to selfgovernment adapted to differing circumstances of AbOriginal people throughoutCanada. Self-government agreements can focus on the exercise of a singlejurisdiction or a comprehensive range of jurisdictions. Agreements on selfgovernment can be given effect through a variety of mechanisms includingtreaties, legislation, contracts and non-binding memoranda of understanding.

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3.3Inclusion )f SelfGovernment n Comprehensive Land ClaimAgreementsThe InherentRightPolicy(1995) provides for the negotiation of self-governmentarrangements as part of a modem treaty:The GovernmentofCanadaisprepared,whereotherpartiesagree,toconstitutionallyprotectrightsset outinnegotiatedself-governmentagreements streatyrightswithinthemeaningof section 5of theConstitutionAct, 1982.Implementationof theinherentrightinthisfashionwouldbea continuationof thehistoricrelationshipbetweenAboriginalpeoplesandtheCrown.Self-governmentrightscouldbeprotectedundersection35:

n new treaties; s partof comprehensivelandclaimagreements;or s additionstoexistingtreaties.Treatiescreatemutuallybindingobligationsandcommitmentswhichareconstitutionallyprotected.Recognizingthesolemnand enduringnatureof treatyrights, thegovernmentbelievesthattheprimarycriterionfor determiningwhetheror not a mattershouldreceiveconstitutionalprotectioniswhetherit isafundamentalelementof self-governmentthatshouldbindfuturegenerations.Underthisapproach,suitablemattersforconstitutionalprotectionwouldinclude:

a listingofjurisdictionsor authoritiesby subjectmatterand relatedarrangements; therelationshipofAboriginallawstofederalandprovinciallaws; thegeographicareawithinwhichtheAboriginalgovernmentor institutionwillexerciseitsjurisdiction or authority,and thepeopletobeaffectedthereby;and mattersrelatingtotheaccountabilityof theAboriginalgovernmenttoitsmembers,inordertoestablishitslegitimacyand thelegitimacyof itslawswithintheConstitutionof Canada.

t followsfromthisapproachthatmattersinagreementsofa technicalortemporarynaturewouldnot beappropriatemattersforconstitutionalprotectionas treatyrights.Arrangementsthatmustbeadaptabletochangingcircumstances,such sprogramand servicedeliveryarrangements, and fundingagreements,wouldthereforenotbeappropriatesubjectsforconstitutionalprotection streatyrights.The InherentRightPolicy(1995) has significantly expanded the scope ofnegotiations for modem treaties. The policy has demonstrated itself to be aworkable framework for the achievement of self-government arrangements inmodem treaty negotiations. Most modem treaties concluded since 1995 includeself-government arrangements. The policy continues to evolve based on

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experience in impfementing self-government agreements, including examinationof approaches for harmonization of fiscal arrangements.4 Involvement o Provincial and Territorial GovernmentsThe recognition and affirmation of Aboriginal and Treaty rights in section 5 ofthe Constitution Act, 1982 commits federal, provincial and territorial governmentsto the constitutional objective of reconciliation.The Government of Canada has a special relationship with Aboriginal peopleflowing from its constitutional jurisdiction in relation to Indians and lands reservedfor Indians. It is a p r r o g ~ t i v of the federal Crown to negotiate treaties withAboriginal people.The successful negotiation of modern treaties, however, also requires theappropriate participation of affected provincial and territorial governments. TheComprehensive Land Claims Policy (1986) states:The federal government has jurisdiction in relation to Indians and Indian lands.Most other lands and resources, except in the territories, fall under provincialjurisdiction. or this reason, the participation ofprovincial governments in thenegotiation ofclaims within their urisdiction will be strongly encouraged and isessential to any negotiation of settlements involving areas ofprovincialjurisdiction or provincial lands and resources. Consistent with this approach, thefederal government maintains the position that provincial governments shouldcontribute to claim settlements in exchange for the certainty of title they receivethrough them.

In the territories, where lands and resources were under federal jurisdiction, the1986 policy provided that: Negotiations in these areas will be bilateral in natureleading to federally legislated settlements complemented by territorial legislationas required. Territorial governments will partiCipate fully in the application of landclaims policy and in negotiations, under the leadership of the federalgovernment. Territorial governments have since that time assumed anincreasingly independent role in relation to the land and resource components ofmodern treaty negotiations, particularly where devolution agreements havetransferred administration and control of lands and resources to territorialgovernments.The Inherent Right Policy (1995) reiterates requirements for provincial andterritorial government participation where the scope of negotiations could affectmatters under their jurisdiction. Constitutional protection of self-governmentarrangements can only occur with the agreement of affected provincialgovernments. The Inherent Right Policy (1995) addresses requirements forprovincial and territorial government participation as follows:

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In lightof the wide array ofAboriginal urisdictions or authorities that m y be thesubject ofnegotiations, provincial governments are necessary parties tonegotiations nd agreements where subject matters being negotiated normallyfall within provincial urisdiction or m y have impacts beyond the Aboriginal groupor Aboriginal lands in question. Territorial governments should be party to nynegotiations nd related agreements on implementation of self-government northof the sixtieth parallel.In British Columbia, modern treaty negotiations are conducted through a tripartiteBritish Columbia Treaty Process established in 1993 by agreement of Canada,the Government of British Columbia and First Nations represented by the FirstNations Summit. The treaty process includes an independent British ColumbiaTreaty Commission to oversee the conduct of negotiations.In other provinces and in the territories, modern treaty negotiations proceedpursuant to framework agreements approved by Canada, AbOriginal parties andrelevant provincial or territorial governments for conduct of particularnegotiations.5 Protection of Aboriginal and Non-Aboriginal InterestsSettlements must respect the rights nd interests ofAboriginal nd nonAboriginal people alike. Through the negotiat ing process, claimants will have anopportunity to participate actively in the equitable reconciliation of theseinterests.

5 1 Aboriginal Rights and InterestsThe Comprehensive Land Claims Policy (1986) was designed to address onlythose Aboriginal rights that were land-related. t that time, the Policy providedthat any other [Aboriginal] rights which may exist will remain unaffected bycomprehensive land claim agreements .With the Government of Canada s recognition of the inherent right of selfgovernment in 1995, the scope of comprehensive land claim negotiations wasexpanded to include non land-related rights, including jurisdiction over social andcultural matters.As outlined in the section of this paper dealing with certainty, modern treatiesmust achieve certainty with respect to all land-related rights, including rightsrelating to use, ownership, management and jurisdiction over lands. Wheremodern treaties include self-government and non land-related rights, theagreement must achieve either:

a full settlement with respect to all non land-related Aboriginal rights, or

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a full settlement with respect to those non land-related rights addressed Inthe treaty. with an orderly process for bringing additional non land-relatedrights into the treaty.5.2Protection for Rights and Interests of Aboriginal Groups During

NegotiationsAppropriate interim measures m y be established to protect Aboriginal interests,while the claim is being negotiated. These measures will be identified in initialnegotiating mandates in specific cases.

During the course of modern treaty negotiations, the Crown m y also have a dutyto consult and, where appropriate, accommodate when the Crown contemplatesconduct that might adversely impact potential or established Aboriginal or treatyrights. The Government of Canada's approach to fulfilling its duties to consultand accommodate is set out in its March 2011 publication: AboriginalConsultation nd Accommodation - Updated Guidelines for Federal Officials toFulfill the Duty to Consult.http://www.aadnc-aandc.gc.ca/eng/1100100014664/11 1 00014675

5.3 Gender EqualitySection 35 (4) of the Constitution Act, 1982 provides that Aboriginal and treatyrights recognized and affirmed in section 35 "are guaranteed equally to male andfemale persons". This guarantee is respected by Canada in both the negotiationand implementation of modem treaties.

5.4Public and Third-Party InterestsIn attempting to define the rights ofAboriginal people, the Government ofCanada does not intend to prejudice the existing rights of others. he generalpublic interest nd third-party interests will be respected in the negotiation ofclaims settlements and, i f affected, will be dealt with equitably. Provision must bemade for protecting the current interests ofnon-Aboriginal subsistence users andfor the right of the general public to enjoy recreational activities, hunting ndfishing on Crown lands, subject to laws of general application.

Information about the general status and progress of negotiations will be madeavailable to the public. In addition, part of the mandate of federal negotiators willbe to maintain appropriate nd effective communication with those third partieswhose interests are directly connected to issues under negotiation.

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5.5Public AccessSettlements will provide for innocent public access to selected or retainedAboriginal lands nd for right-of-way for necessary public purposes. Accessrights pertaining to transportation routes in nd through the settlement area must

also be provided for.Holders of subsurface rights must have access to settlement lands, wherenecessary, for the exploration, development nd production of resources. Theexercise of such rights will be subject to fair compensation as determinedthrough timely negotiations or by arbitration.6. Implementation Amendment and Dispute Resolution

6 1 mplementationThe constitutional objective of reconciliation applies both to the negotiation andimplementation of modern treaties.Modern treaties are more than a one-time contractual resolution of Aboriginalclaims; they establish the foundation for ongoing relationships between theCrown and Aboriginal parties, creating treaty rights which are constitutionallyprotected.Modern treaties are to be interpreted in a reasonable and purposive manner inorder to find the common intention of the parties, and with due regard for theterms negotiated by the parties.The federal government as a whole is responsible for fulfillment of Canada sobligations under modern treaties. All affected government departments andagencies are to carry out treaty obligations in a timely, diligent and coordinatedmanner, consistent with the honour of the Crown.

6.2AmendmentModern treaties will include clear processes for the amendment of theseagreements, providing:predictability .. for the future as to how the applicable provisions may bechanged nd in what circumstances.

6.3Dispute ResolutionModern treaties will include processes for the resolution of conflicts or disputesrespecting the interpretation, application or implementation of the agreement.Dispute resolution will normally follow a staged approach encompassing

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collaborative negotiations, facilitation or mediation, and arbitration. Use oarbitration should require the consent o all parties to the dispute on mattersbeyond detel1 nination o fact or on technical issues, unless otherwise specified inthe treaty.

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SECTION 3 -Modem Treaty Negotiation Processes and Procedures

1. Modem Treaty Negotiation Process1 1 The British Columbia Treaty Process

In 1990 the Governments of Canada and British Columbia together with theFirst Nations of British Columbia established a Claims Task Force to investigatehow treaty negotiations might begin in British Columbia and what they shouldcover. The Claims Task Force made 19 recommendations and suggested asix-stage process for negotiating modem treaties with an independent BritishColumbia Treaty Commission to oversee and facilitate the process. A tripartiteagreement was concluded in 1992; treaty commissioners were first appointed inApril 1993; and the treaty process officially began in December 1993.The treaty process is a six-stage negotiation between the federal governmentthe provincial government and participating First Nations:

Stage 1 Statement of intent to negotiate Stage 2: Readiness to negotiate Stage 3: Negotiation of a framework agreement Stage 4: Negotiation of an agreement in principle Stage 5: Negotiation to finalize a treaty Stage 6: Implementation of the treatyThe treaty negotiation process is open to all First Nations in British Columbiawithout requirements for submission of statements of claim and supportingmaterials or for government review and acceptance of claims. The BritishColumbia Treaty Commission accepts First Nations into the treaty process on thebasis of their unresolved claims to section 35 rights allocates negotiation supportfunding and monitors the progress of negotiations.

1.2Process for Modern Treaty Negotiations Outside of British ColumbiaThe following section sets out general procedures for the initiation and conduct ofcomprehensive land claim negotiations outside of British Columbia.

a Statement of ClaimThe claims process begins with the preparation of the statement of claim ndappropriate supporting materials by the claimant group. A statement of claimshould contain the following elements:

A statement that the claimant group h s not previously adhered to treaty;

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Adocumentedstatementfromtheclaimantgroupthatit h s traditionallyusedand occupiedthete"itory inquestionand thatthisuseandoccupationcontinues; Adescriptionof theextentand locationof suchlanduseand occupancy,togetherwith mapoutliningtheapproximateboundaries; Identificationof theclaimantgroupincludingthenamesof thebands,tribesand communitiesonwhosebehalf theclaimisbeingmade,theclaimant'slinguisticand culturalaffiliation, and approximatepopulationfiguresfortheclaimantgroup."

b. Acceptanceof Claims"Uponreceiptofastatementof claim, theMinisterof AboriginalAffairsandNorthernDevelopmentwillreviewthesubmissionand accompanyingdocumentationand seekadviceof theMinisterofJustice stoitsacceptabilityaccordingtolegalcriteria. Theclaimantgroupwillbeadvisedby theMinisterofAboriginalAffairsand NorthernDevelopment,withintwelvemonths, stowhethertheclaimisacceptedor rejected. Intheeventthat claimisrejected,reasonswillbeprovidedinwritingtotheclaimantgroup."

c. PreliminaryNegotiations"Negotiationstowardthedevelopmentof frameworkagreementwillbeinitiatedwhentheMinisterofAboriginalAffairsand NorthernDevelopmentudgesthelikelihoodof successfulnegotiationstobehigh,thesettlementofclaimsintheareatobeapriority,and whereactiveprovincialand territorialinvolvementmaybeobtained snecessary.Negotiationswillbe conductedonly withgroupsdulymandatedby theclaimantstheyrepresent, tothesatisfactionof theMinister.Seniorfederalnegotiatorswillbeappointedby theMinisterfromwithinor outsidethepublicservice, asappropriate,and willreceiveinitialnegotiatingmandatesfromthefederalgovernment.Bilateraldiscussionswillbeheldwiththeprovincialor te"itorial governmentsconcernedregardingtheirpartiCipationinthenegotiations."

d. FrameworkAgreements"Frameworkagreementswillbenegotiatedand willdeterminethescope,process,topicsand parametersfornegotiation.Approachestoobtainingcertaintywithrespecttolandsand resources, self-government,and theorderandtimerameof negotiationswillalsobe providedforintheframeworkagreements.Frameworkagreements,and substantialchangestothem, willbeconsideredandapprovedby thefederalgovernment."

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e g t m n t s ~ i n PrinclpleAgreements-in-principle will require endorsement by the claimant group. Thismay be provided by resolutions of assemblies or by band council resolutions.Agreements-in-principle will also be considered and approved by the federalgovernment.

f Final greementsFinal agreements will require the approval of the federal government and mustbe formally ratified by the aboriginal claimants.

Settlement legislation will be passed to give effect to the agreements reached.As set out in the Inherent Right Policy 1995):The Government of Canada will require evidence that negotiated agreementshave been ratified by the Aboriginal group concerned in a way that demonstratesclearly the group's consent. While the specific ratification mechanism can benegotiated, it will have to ensure that all members have an opportunity toparticipate, that they have all relevant information available, and that theprocedures for ratification are transparent and recognized as binding. Theratification mechanism will also have to comply with legal requirementsrespecting the transfer ofassets.

g ImplementationFinal agreements must be accompanied by implementation plans to beapproved by all parties in conjunction with approval o final agreements.Implementation plans must identify the activities, time frames and resources thathave been agreed upon to give effect to the agreement.All elements ofagreements related to land, title, quantum of resources (whereapplicable) and financial compensation will be final.Provisions relating to management and decision-making agencies will be subjectto review from time to time, as agreed, and subject to legislative amendment,where the parties agree that the specific provisions are unworkable, obsolete orno longer desirable.The negotiating process will take account of the federal regulatory reform policyand Citizens Code of regulatory fairness, and the final agreements andimplementation plans will provide for regulatory impact assessments.

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COntolldatfld Guide - RetIects staCUB 01 Canada's COmprehensive nd Claims olicy ofSpring 2013

The Inherent Right Policy 1995) addresses requirements for implementationplans and financial arrangements where self-government Is included incomprehensive land claim agreements.h Modem Treaties Steering ommittee

U committee composed ofAssistant Deputy Ministers from governmentagencies and departments most involved in claims negotiations will beestablished. The committee will review and provide advice to Ministers onnegotiating mandates, the negotiating process, framework agreements,agreements-in- principal and final agreements. The committee will also reviewand provide advice to Ministers on modem treaty implementation.The committee will provide a regular ongoing review, t a senior level, of modemtreaty priorities, negotiating strategies, and operational and policy issues thatrelate to negotiations and implementation, while maintaining an overview ofactivities across the federal government related to negotiations andimplementation. Finally, the committee will provide policy elaboration and advice,monitor progress, and facilitate the participation of all federal departments andagencies as required in negotiation and implementation processes.

consolidated guide to the government of canada's approach to modern treaty negotiations

Documents