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Cablegate: Aboriginal Land Claims Defy Timely Resolution

DE RUEHOT #0643/01 2331437
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E.O.: 12958: N/A


1. (SBU) Summary: The recent imbroglio between the Canadian Border
Services Agency and the Mohawk community of Akwesasne over armed
agents at the crossing point on Cornwall Island, Ontario (reftel)
highlights again the complexity, lack of clarity, and evolving
nature of relations between the federal and provincial governments
and Canada's aboriginal populations. Slow progress on
self-government and land claims pose ongoing human rights
challenges. As long as Canada lacks a clear legal definition of
aboriginal titles and rights, effective mechanisms to resolve First
Nations grievances in a timely manner will remain elusive. End
2. (U) According to the latest census (2006), aboriginal Canadians
-- Indians, Inuit, and Metis (persons of mixed aboriginal and
European ancestry)) -- number almost 1.2 million, or approximately 4
pct of the total population. "Status Indians" (Indians with
federally recognized aboriginal status) constitute 60 pct of the
aboriginal population, Metis 33 pct, and Inuit 4 pct. The
aboriginal population increased by 45 pct from 1996 to 2006, nearly
six times faster than the non-aboriginal growth rate. The median
age of the aboriginal population is 27 years (compared to 40 years
for non-aboriginal peoples) and 31 pct is under the age of 14.
According to Statistics Canada, aboriginal peoples on average
experience poorer health outcomes, worse housing conditions, lower
rates of high school completion, and higher unemployment than the
non-aboriginal population. In 2007-2008, aboriginals accounted for
22 pct of the adult incarcerated population.
3. (U) The federal Department of Indian and Northern Affairs (INAC)
recognizes 615 First Nations (Status Indian) communities across all
ten provinces and two territories. Canada's third territory,
Nunavut, is an Inuit "homeland," in which 83.6 pct of the population
is Inuit. Approximately 60 pct of aboriginal people in Canada now
live off-reserve, up from 58 percent in 1996. Ontario has the
largest aboriginal population (21 pct of the provincial population),
but the four western provinces are home to 61 pct of the total
aboriginal population.
4. (U) The 1876 Indian Act is the principal federal legislation
defining aboriginal status, governance, and eligibility for federal
benefits and services. INAC is responsible for the administration
of the Act, along with another 58 laws relating to First Nations,
and shares responsibility with other federal government departments
for 17 other related statutes.
5. (U) As an alternative to federal stewardship under the Indian
Act, Canada acknowledges self-government as an "inherent" aboriginal
right within the meaning of section 35(1) of the 1982 Constitution
Act. Since 1982, the federal and provincial governments and
aboriginal groups have attempted to negotiate a clearer definition
of "aboriginal right" to add to the Constitution, but have failed to
agree. In 1995, the then-Liberal federal government began including
(in conjunction with provincial governments) proposals for
aboriginal self-government as part of negotiations on comprehensive
land claims as an alternative to potentially costly litigation.
6. (U) The "inherent" right of self-government does not grant a
right of sovereignty in the sense of international law, and does not
create sovereign independent aboriginal nation states. Rather,
federal guidelines underscore that First Nations exercise only
self-government under the Constitution. The Canadian Charter of
Qself-government under the Constitution. The Canadian Charter of
Rights and Freedoms also applies fully to aboriginal governments.
In 2005, the government of British Columbia entered into a "New
Relationship" with its First Nations based on accommodation of
aboriginal title and rights and acknowledgement of aboriginal titles
over much of the province. The B.C. provincial government
subsequently proposed a "Recognition and Reconciliation Act," but
has not yet tabled it in the legislature.
7. (U) All self-government agreements the federal government has
signed with First Nations differentiate jurisdiction as follows:
-- issues that are integral to distinct aboriginal culture (e.g.
governance, status, language, culture, education, health, social
services, law enforcement, resource management, taxation, and
economic development) fall under the exclusive administration of
aboriginal governments;
-- areas where primary law-making authority remains with the federal
and/or provincial government if in conflict with aboriginal law
(e.g. environmental protection, natural resource co-management,
penitentiaries, and emergency preparedness); and,
-- areas that are not integral to aboriginal cultures, or internal
to aboriginal groups, and where the federal government retains its
exclusive law-making authority, including national defense and
security, security of national borders, immigration, and
international trade as well as "other national interest powers" such
as regulation of the national economy, maintenance of law and order,
health and safety, and transportation. In 2011, the federal
government will also extend the Canadian Human Rights Act to First
Nations people on reserves (including those under self-government
agreements) for the first time.

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8. (U) Lack of a standard model for resolving comprehensive land
claims, self-government agreements, and the absence of a clear legal
definition of what constitutes an "aboriginal right" have resulted
in complex multi-year negotiations, a significant claims backlog,
and friction between aboriginal communities and the federal and
provincial governments. Even for completed treaties and agreements,
litigation may still occur. INAC is the lead department tasked with
negotiating and implementing land claims and self-government
agreements with First Nations on behalf of the federal government.
In 2003, some First Nations dissatisfied with the implementation of
their treaties formed the Land Claims Agreements Coalition. Whereas
the federal government regards completed comprehensive land claims
treaties and self-government agreements as, in principle, the
discharge of its obligations, members of the Land Claims Agreements
Coalition have underscored that they see such agreements as not an
end, but the beginning of new relationships, with ongoing federal
9. (U) According to INAC officials, court rulings have been the
principal "game-changers" in recognizing aboriginal rights and
giving aboriginal communities greater control over their own
decisions. However, since 2006 the federal government under Prime
Minister Stephen Harper has also promoted economic development and a
more business-oriented approach as a new direction in its relations
with aboriginal communities. PM Harper cancelled the 2005 Kelowna
Accord negotiated by the previous Liberal government, which would
have mandated federal spending of C$5 billion over ten years on
aboriginal social services. In June 2009, the federal government
launched a new "Federal Framework for Aboriginal Economic
Development," promising government collaboration, private sector
partnerships, skills development, and easier access to capital. In
August 2009, PM Harper used an Arctic tour to announce a new
economic development strategy and creation of a new Canadian
Northern Economic Development Agency (CanNor) in Iqaluit, Nunavut.
The government's "Northern Strategy" emphasizes the role of
aboriginal peoples in strengthening Canadian Arctic sovereignty,
protecting the environment, and promoting economic and social
development in the North.
10. (U) Some First Nations have also pushed to replace the Indian
Act with more modern partnerships. In July 2009, chiefs across the
country elected Shawn Atleo as the new National Chief of the
Assembly of First Nations on a platform of economic development,
self-sufficiency, and tackling poverty. Bands in Atleo's home
province of B.C. have built on land claims settlements, resource
rights, and self-government agreements to launch businesses and
generate new sources of revenue.
11. (U) Aboriginal leaders have insisted that land and control over
its resources are the key to self-sufficiency. There are two types
of aboriginal land claims. "Comprehensive claims" deal with
aboriginal rights and titles that have not previously been settled
by treaty or other means. In these cases, the federal government
negotiates new treaties. "Specific claims" deal with First Nations'
grievances arising from alleged non-fulfillment of federal
obligations under existing treaties or other legal obligations, or
from the way the federal government has managed First Nations' funds
or assets. Resolution may take the form of additions to existing
treaties, transfers of land, cash, or resource rights. In 2008, the
Qtreaties, transfers of land, cash, or resource rights. In 2008, the
federal government had more than 60 separate ongoing negotiations
for comprehensive land claims and more than 800 specific claims
remained outstanding.
12. (U) The Crown signed more than 70 treaties with First Nations
between 1701 and 1923. Subsequently, the federal government has
negotiated and ratified 21 additional treaties covering 40 pct of
Canada's land mass. The impetus for negotiation of comprehensive
land claims stemmed from a landmark 1973 Supreme Court of Canada
ruling confirming that aboriginal peoples' historic occupation of
the land gave them legal rights not previously subject to treaties
(principally in British Columbia, southern Alberta, and the Yukon).
The federal government established processes to resolve
comprehensive claims through negotiation in 1973 as an optional
alternative to costly litigation. It signed the first comprehensive
land claims agreement in 1975. The Constitution Act of 1982
(section 35 (1)) further "recognized and affirmed" the "existing
aboriginal and treaty rights of the aboriginal peoples of Canada."

13. (U) In October 2008, the federal government "retooled" the
previous specific claims process to establish a new independent
Specific Claims Tribunal to expedite cases. The Tribunal, composed
of six provincial superior court judges selected in consultation
with the Assembly of First Nations (Canada's largest aboriginal
advocacy group), has the authority to make binding decisions on
claims that have been rejected for negotiation, or where
negotiations fail, on claims up to C$150 million (approximately $140
million). It has not yet publicly registered any judgments.
14. (SBU) COMMENT: Canadian courts have been the primary drivers of
federal and provincial efforts to resolve aboriginal grievances,
both in imposing new obligations and in encouraging negotiations to
preempt litigation. However, as long as Canada lacks a clear
definition of aboriginal rights or a uniform model for negotiations,

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effective mechanisms to resolve aboriginal grievances in a timely
manner will remain elusive.

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