Since 1973, when the federal government issued a policy statement declaring its willingness to accept land claims based on traditional use and occupancy and to negotiate settlements of such claims, several attempts have been made to provide a more explicit expression of those views-in short, a comprehensive statement on comprehensive claims. In 1981, the Department of Indian Affairs and Northern Development issued a document entitled In All Fairness that was intended to answer many of the questions arising out of early bargaining sessions between government and aboriginal negotiators. However, perceived shortcomings in this approach led to the appointment, in July 1985, of the Task Force to Review Comprehensive Claims Policy. In December 1985, the task force submitted its report, Living Treaties: Lasting Agreements, and the process of governmental review began anew. One year later, in December 1986, the government released its response to the task force recommendations in the form of a policy statement by Minister of Indian Affairs and Northern Development Bill McKnight.

 The accompanying text compares some of the key elements of the 1981 and 1986 policies with the proposals for change contained in the 1985 task force report. All material has been reproduced as it appeared

 Objectives

 1981 Policy Statement

 "...the government has three major objectives:

"The objectives of the proposed comprehensive claims policy should be to reach agreements that:

"The concern of the government in this matter is to ensure that dispositions of land and resources may be made with certainty." (p. 5)

"A new feature of the claims policy is the provision for the enhancement of economic development and self-government-two of the cornerstones of this government's relationship with native people."¹

Extinguishment

1981 Policy Statement

"... [the government's] commitment is to bring to a full and satisfactory conclusion, the resolution of Native land claims." (p. 3)

"The thrust of this policy is to exchange undefined aboriginal land rights for concrete rights and benefits." (p. 19)

1985 Task Force Report

"A claims policy that requires a surrender and extinguishment of all aboriginal rights can, and must, be abandoned. It can be abandoned because, as we have shown, there are other methods for clearing title to the land. It must be abandoned because, if it is not, there will be no possibility of achieving land claims agreements based on common objectives." (P 43)

"To be workable, an alternative to extinguishment must have at least four characteristics. First, it must be acceptable to the aboriginal people concerned, for their rights cannot be altered without their consent. Secondly, to encourage investment in, and development of, property rights, it must enable the granting of secure rights to lands and resources. Thirdly, it must be simple, because complex approaches promote legal uncertainty. Fourthly, it must be familiar, so that rights can be defined to fit comfortably into the dominant property law system." (p. 41)

1986 Policy Statement

"... we explicitly acknowledge that only those land based rights, encompassed in the term aboriginal title, are subject to negotiation in the comprehensive claims process. Other aboriginal rights which may exist are not at issue and will remain unaffected by comprehensive claims agreements unless identified explicitly by the parties as part of the negotiations." (p. 6)

Land and Resource Management

1981 Policy Statement

"Meaningful and influential Native involvement in land management and planning decisions on Crown lands could be initiated and strengthened by providing membership on those appropriate boards and committees whose decisions affect the lives of their communities." (p. 23)

1985 Task Force Report

"Aboriginal groups should be entitled to negotiate decision-making participation in the management and use of land and resources within their traditional areas. The decision-making structures in which they participate should have responsibilities that go beyond a merely advisory role. It is vital that aboriginal groups be able to negotiate decision-making powers and to explore with governments the most appropriate means of sharing responsibility for the use and management of land and resources." (p. 56)

1986 Policy Statement

"... it is expected that settlements will recognize a particular aboriginal managerial interest in relation to environmental matters including water, land use and wildlife management. It is not a sound approach to recognize special harvesting rights for an aboriginal group, but then to exclude the harvesters of the resources affected from responsibility for their management. Under the policy, therefore, aboriginal groups may negotiate membership on management boards and other agencies with decision-making powers as well as negotiating representation on advisory committees, as was possible under the previous policy." (pp. 9-10)

Land and Resource Ownership

1981 Policy Statement

"Lands selected by Natives for their continuing use should be traditional land that they currently use and occupy; but persons of non-Native origin who have acquired for various purposes, rights in the land in the area claimed, are equally deserving of consideration. Their rights and interests must be dealt with equitably.

"Other basic access rights must be taken into consideration: rights of access such as transportation routes within and through a settlement area; rights of way for necessary government purposes; rights of access to holders of subsurface rights for exploration, development and production of resources, subject to fair compensation as mutually agreed either through negotiation or arbitration." (p. 23)

"The federal government is prepared to include subsurface rights in comprehensive land claim settlements in certain cases." (p. 24)

1985 Task Force Report

"We encourage the development of negotiation and settlement proposals that take into consideration matters such as the economic potential of the lands and resources.... The only measure that should be made of the claim agreement is whether or not the parties have achieved their aims and objectives." (p. 48)

"The existing rights of third parties on traditional aboriginal lands should be respected.... In all cases, such rights should be dealt with equitably." (p. 62)

"Ownership of subsurface resources may help aboriginal societies to become economically self-sufficient." (p. 58)

"Generally, an open approach to resource revenue sharing should help to reduce the size of cash components in claims agreements.... Within areas of federal jurisdiction, the claims policy should permit negotiations to explore means of enabling aboriginal groups to share in the revenues from resource development in their traditional areas." (p. 67-68)

1986 Policy Statement

: "Subsurface rights in defined areas could be granted to aboriginal groups, in some cases as a means of avoiding land-use conflict in key areas and in others as a way to provide aboriginal people with the opportunity to gain revenues from the development of such subsurface resources .... the federal government is prepared to assign to aboriginal groups a percentage of the Crown's royalties derived from the extraction of resources in the entire settlement area.... Limitations may be placed on these arrangements with respect to the duration of agreements or the amounts involved "(pp. 13-14)

Economic Development

1981 Policy Statement

"Development has only served to make the settlement of these claims more urgent to some native groups. The government recognizes the urgency to settle land claims as quickly and effectively as possible in order that the interests of Native people be protected in the wake of developments in a way that offers them a choice of lifestyles." (p. 8)

1985 Task Force Report

`'Modern claims agreements must help to restore and develop economically viable aboriginal communities. The agreements must be flexible enough to accommodate changes in the opportunities for economic development. To insist that aboriginal peoples rely solely on traditional activities would be to compound the errors of the past and to condemn aboriginals to a marginal economic existence.

'`At the same time, the renewable resource economy must be sustained and supported so that the option of developing traditional means of livelihood is always available. Economic development provisions respecting renewable resources could take many forms, such as support for marketing products of renewable resource harvesting and income support for aboriginal hunting, trapping, and fishing.

"The social, cultural, and political health of aboriginal societies depends upon a solid economic foundation, and aboriginal peoples should determine for themselves how their economic needs can be met. Agreements must provide for a range of economic development options if they are to achieve their objectives." (p. 65)

1986 Policy Statement

". . .the aboriginal peoples and our government are seeking new ways to provide for lasting economic development which will benefit aboriginal Canadians. Comprehensive claims policy requires changes in order to be consistent with these important developments. " (DD. 1-21

Offshore and Water Rights

1981 Policy Statement

"The thrust of this policy is to exchange undefined aboriginal land rights for concrete rights and benefits."² (p. 19)

1985 Task Force Report

"The federal government should be prepared to negotiate claims based upon traditional use of the ocean resources .... in areas where aboriginal peoples' traditional territory and resource use have extended to the offshore, negotiations should proceed, to the extent possible, as though the claims involved land." (p. 61 )

"Aboriginal groups should be allowed to negotiate the control of access to waters located on land they retain pursuant to land claims agreements.... Aboriginal groups should be given the chance to participate in management decisions relating to water within their traditional lands, according to the policy for management boards...." (p. 57)

1986 Policy Statement

".. . the federal government is prepared to negotiate with aboriginal groups on matters relating to the harvesting and management of renewable resources in marine areas as well as on land." (p. I I )

"...the federal government is prepared to assign to aboriginal groups a percentage of the Crown's royalties derived from the extraction of resources in the entire settlement area .... this option will include not only royalties from terrestrial resources, but also from nonrenewable resources extracted from offshore areas that form part of the claims settlement area."(p. 13)

Compensation

1981 Policy Statement

"[Compensation] can take various forms including cash, government bonds and other forms of debentures.... no matter how these capital transfers take place, the amounts negotiated must be specific and finite." (p. 24)

1985 Task Force Report

"Cash was not the answer 100 years ago, and it is not the answer today. Far more important . . . are the establishment of political institutions, access to resources, and the sharing of future revenues from the land." (p. 70)

"Agreements should include the provision of capital to aboriginal groups for economic and community development. The amounts may vary from region to region, depending upon what is required to build self-sufficient economies Aboriginal groups should be able to use the funds as they see fit for the purpose of economic and community development. Such funds should be held not by individuals but by organizations responsible to the aboriginal group. Some funds may be delivered in advance, but the full allocation should await a complete agreement. The total amount should be fixed in the complete agreement." (p. 70)

1986 Policy Statement

".. . the federal government is prepared to assign to aboriginal groups a percentage of the Crown's royalties.... The exact percentage to be made available will, of course, depend upon the interest of the aboriginal group in this option, and upon other components of the settlement agreement, including the monetary compensation."(p. 13-14)

Process

1981 Policy Statement

"Negotiations with a group will occur only if and when their claim has been accepted. Negotiations will then take place only with those persons who have been duly mandated to represent the claimant groups." (p. 27)

"If accepted, the Office of Native Claims is authorized to initiate negotiations for a settlement under the direction of the Minister. In certain instances, the Minister may appoint a negotiator from outside the Public Service to head the negotiations." (p. 14)

1985 Task Force Report

". . . the federal government should appoint a Commissioner for Aboriginal Land Claims Agreements to ensure fairness in the process of and to expedite the settlement of claims." (p. 79)

"The commissioner would be, in effect, a 'keeper of the process.' This appointment would relieve the department of some of the functions it now fulfils, and would go some distance towards making the process fairer, more expeditious, and more open to public scrutiny. " (p. 81 )

1986 Policy Statement

".. . changes will be made to improve the negotiating process. Within the next few months, my colleagues will be reviewing the status of the six claims at present under negotiation, in order to clarify the mandate of the negotiators. " (p. 15)

Self-Government

1981 Policy Statement

"The negotiations are designed to deal with non-political matters arising from the notion of aboriginal land rights such as, lands, cash compensation, wildlife rights, and may include self-government on a local basis." (p. 19)

1985 Task Force Report

"The policy should allow for the negotiation of self-government." (p. 31)

"A constitutional amendment on self-government could provide an attractive alternative to the comprehensive claims process, which already suffers from an unacceptable backlog of groups awaiting negotiation." (p. 23)

1986 Policy Statement

"Recognizing that the resolution of claims is inextricably linked to questions of authority and control over aboriginal lands, a new feature of the policy will be to allow for negotiation of a broader range of self-government matters." (p. 8)

Implementation

1981 Policy Statement

"All Canadians would agree that claims have been left unresolved for too long." (p. 3)

1985 Task Force Report

"To improve the ability of both sides to implement agreements, consideration should be given to phased implementation, in which certain matters agreed to in the course of negotiations could be implemented in advance of the complete agreement.... Portions of agreements (sub-agreements) should be implemented before completion of an agreement. The timing of the implementation of sub-agreements and the complete agreement should be the subject of negotiation." (p. 95)

1986 Policy Statement

"As recommended by the Auditor General, all final agreements will be accompanied by implementation plans. We will strive to overcome past difficulties in implementing settlements by ensuring that detailed plans are worked out in advance of final agreements. " (p. 16)

Provincial-Territorial Involvement

1981 Policy Statement

"Negotiations concerning claims North of 60° will be bilateral between the claimant groups and the federal government leading to federally legislated settlements. However, provision will be made for the territorial governments to be involved in the negotiations under the leadership of the federal government.

"Where claims fall in provincial areas of jurisdiction and in those cases where provincial interests and responsibilities are affected, provinces must be involved in claims negotiations in order to arrive at fully equitable settlements." (p. 27)

1985 Task Force Report

"The [federal] government should take the initiative in persuading provinces to become part of the negotiating process.... If provincial co-operation cannot be secured within a reasonable time, the federal government should embark upon negotiations on matters within its own jurisdiction." (p. 49)

"Both territorial governments ... should continue to participate as key members of the federal team. " (pp. 50-51 )

1986 Policy Statement

"We will be collaborating closely with the provinces and the territorial governments as we move ahead." (p. 16)

Finality

1981 Policy Statement

"When a land claim is accepted for negotiation, the government requires that the negotiation process and settlement formula be thorough so that the claim cannot arise again in the future. In other words, any land claims: settlement will be final." (p. 19)

1985 Task Force Report

"A periodic review should be built into each agreement to examine its performance against its objectives. Flexible elements of agreements should be adjusted to ensure that objectives are being met. The first review should take place a few years after implementation, with subsequent reviews at longer intervals.... Such automatic reviews should not preclude the adjustment of agreements at any time at which the parties perceive the need.... When disagreements cannot be resolved by discussion within a reasonable time, they should be resolved through arbitration." (pp. 96-97)

1986 Policy Statement

"The concern of the government in this matter is to ensure that dispositions of land and resources may be made with certainty." (p. 5)

Endnotes

1. Address to the House of Commons by the Hon. Bill McKnight, P.C., M.P., Minister of Indian Affairs and Northern Development, on comprehensive Claims Policy, 18 December 1986, p. 4.

2. Emphasis added.