Almost as soon as treaties were signed, there were problems implementing the agreements, which caused treaty First Nations to protest. The federal government was sometimes slow to provide reserve land, giving rise to treaty land entitlement claims.
The federal government’s legal liability for the vast majority of historical land claims stems, indirectly, from the fact that since 1867 it has had legislative authority over “Indians, and Lands reserved for the Indians.”
It is important to note that no two treaties are the same. First Nations across Canada’s vast and varied landscape required and asked for different things. Most treaties guarantee some hunting and fishing rights, while all numbered treaties promise reserve land, education, farming assistance and treaty payments from $5 to $32 a year. Treaty 6 guarantees a “medicine chest”.
In 1973, responding to First Nations’ frustration at having to go to the courts to settle their historic grievances specific claims, the Government of Canada established the Specific Claims Policy and divided Indigenous legal claims into two broad categories: COMPREHENSIVE (known as modern treaties); and SPECIFIC, which make claims based on pre-existing treaties or agreements and under the policy, Canada looks at allegations that treaty or other legal obligations have not been fulfilled.
Specific claims arise when there is an outstanding historical grievance between a First Nation and the Crown that relates to an unfulfilled obligation of a treaty or another agreement, or a breach of statutory responsibilities by the Crown or the way it managed First Nation funds or assets.
Examples would include:
- errors during the reserve creation process
- problems with surveys of reserve boundaries
- broken treaty promises
- failure to obtain compensation (or obtaining inadequate compensation) for reserve surrender
- problems with third-party use of reserves, e.g. roads, power lines, gravel extraction
Claims are accepted for negotiation when it is determined that Canada has an outstanding lawful obligation to a First Nation. If a lawful obligation is found, specific claims settlements are negotiated between First Nations, Canada and (where applicable) the relevant province or territory.
Government policy recognizes that a specific claim exists when a First Nation establishes that its grievance gives rise to a lawful obligation through:
- the non-fulfillment of a treaty or another agreement between First Nations and the Crown
- the breach of an Indian Act or other statutory responsibility
- the breach of an obligation arising out of government administration of First Nation funds or other assets
- an illegal sale or other disposition
Limitation and Laches
Statutes of limitation are federal or provincial statutes which limit the time within which legal action may be taken in the courts to resolve a grievance. The right to take action will expire after a certain length of time unless legal proceedings have been started.
The federal government is not going to refrain from negotiating claims on the basis that they are submitted too late (statutes of limitation) or because the First Nation has waited too long to present its claim (doctrine of laches).
Between 1927 and 1951, the Indian Act made it an offence for a lawyer to receive payment from a First Nation to bring a claim against the Crown without the Government of Canada’s permission.
When those provisions of the Indian Act were repealed in 1951, First Nations began organizing to pursue settlements to resolve their outstanding grievances or specific claims against the Crown.