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Treaty Right to Lands

Specific Claims

The Indian Rights and Treaties Research Programme (IRTRP) also referred to as the Specific Claims Department, assists Saskatchewan First Nations in all stages of the specific claims process, from initial research through to the negotiation of a final settlement. This expertise continues to help Saskatchewan First Nations achieve maximum settlements.

In December 2010, the Claims Advisory Committee met to review claims research proposals submitted by the First Nations. From these submissions, the Committee established the IRTRP work plan for the 2011-2012 fiscal year. All First Nations in the province have the opportunity to submit proposals for research on their specific claims.

The FSIN has been working closely with the Assembly of First Nations (AFN) on matters related to the Specific Claims Tribunal Act. Three justices have been appointed with an additional three identified that can be appointed as the work load requires.

During the summer of 2010, the Tribunal issued a draft of its Rules and Procedures. After review by FSIN staff and legal counsel, and discussions with other interested parties, FSIN had concerns that the rules were too court like, not flexible enough and not culturally sensitive. In July 2010, FSIN made a submission to the Tribunal regarding concerns about the draft rules as well as recommendations. Ten other groups including the Canadian Bar Association, the Indigenous Bar Association, the Assembly of First Nations, and the Department of Justice also made submissions.

On October 5, 2010, the Tribunal judges met with its Rules Advisory Committee, which is composed of representatives of all organizations that made submissions including FSIN. Specific Claims staff and legal counsel made an oral presentation to the Tribunal on the Rules and Procedures. In November 2010, the Tribunal issued a revised set of rules to the Rules Advisory Committee and again asked for comment. FSIN provided additional comments on these revised rules.

The Rules and Procedures of the Tribunal fall within the definition of Regulations under the Statutory Instruments Act (SIA). As such, they must conform to Federal standards that apply to all Regulations made under the authority of Federal legislation. This means that, like all regulations that apply to Federal statutes, a process of review must be undertaken by the Statutory Instrument Branch of the Department of Justice, which will ensure that the Rules and Procedures comply with the provisions of the enabling legislation, particularly the Specific Claims Tribunal Act. The Tribunal cannot begin to hear cases until such time as the Rules and Procedures have been reviewed under the SIA. As such, additional delay may be encountered beyond April 1, 2011.

Further, the AFN and Canada are jointly working on reforming the Additions to Reserve (ATR) Policy. This work is underway, with the FSIN participating in national tables and providing advice and recommendations as to how the ATR policy can be improved.

The first step in ATR reform has been to revise the policy to allow First Nations that receive an award from the Tribunal to acquire replacement lands and have it transferred to reserve status. The next stages will be looking at making the transfer of land to reserve more efficient for all categories of ATR. AFN hosted a regional consultation in Regina on March 9, 2011. Notices were sent to the First Nations regarding this meeting.

Compared to other provinces, the FSIN is the most successful in researching and assisting Saskatchewan First Nations in seeking resolution to their claims. This is illustrated by the fact that Saskatchewan has received 40% of all the specific claims settlement dollars across Canada. Saskatchewan First Nations currently have more than 90 submitted and unresolved claims. Further claims are being researched that will be submitted in the future. The FSIN looks forward to continuing to support and work with the First Nations in their claims resolution.

For more information, contact Jayme Benson, Specific Claims at 933-9466.

Treaty Land Entitlement and Reserve Creation

Changes to the ATR policy, as outlined above, will have positive effects on the federal reserve creation process, particularly for Saskatchewan Treaty Land Entitlement (TLE) First Nations. The 1992 TLE Framework Agreement is meant to fulfill Canada's Treaty obligations to First Nations with respect to land. Originally signed with 25 First Nations, a further 8 First Nations have signed subsequent TLE agreements, with an additional 6 more First Nations in the process of negotiating TLE settlements or conducting research on their claims for eventual submission to Canada. 

While there are positive steps being taken with respect to reserve creation, First Nations with TLE agreements are facing a number of barriers in fulfilling their land selections.

The Provincial Government is signatory to the original 1992 TLE Framework Agreement and to subsequent TLE settlement agreements concluded since then. The Province has constitutional obligations pursuant to paragraph 10 of the Natural Resources Transfer Agreement, 1930 (NRTA), which provides, among other things, that Saskatchewan will set aside unoccupied Crown lands to enable Canada to fulfill its obligations under treaties. However, since 1992, the provincial government has begun to ignore the commitments it made in the TLE Agreements to act in "good faith" and to use its "best efforts" to fulfill the terms of the agreements.

The lack of provincial government commitment is frustrating the ability of First Nations to acquire economically valuable lands, in that the province refuses to approve the sale of Crown lands with identified valuable mineral deposits. Other examples include the ongoing issuing of permits, licenses and leases to resource development industries of undisposed minerals on Crown lands. Under the TLE agreements, Crown minerals are to be transferred free of charge as part of the settlement.

However, once the land is encumbered, which may include the mineral rights, a TLE First Nation is then often unable to obtain the transfer of the mineral rights under their agreement. Additionally, when a First Nation is able to purchase the surface land, the costs to purchase the mineral rights is often extremely costly, if a First Nation chooses to purchase such, or is beyond their financial ability to purchase. If the First Nation wishes to purchase lands where there exists a mineral disposition, the First Nation must honor the mineral disposition until it expires. Other examples are third party interests, such as outfitters, and agricultural and grazing leases.

On February 1, 2011, the FSIN Lands and Resources Secretariat and the Specific Claims Department hosted the latest in a series of meetings between the TLE First Nations and representatives from the Federal and Provincial governments. The problems faced by First Nations in their TLE land selections were addressed. Representatives from both governments committed to working with the FSIN and the First Nations toward resolving the issues. The FSIN Lands and Resources Secretariat will be following up on the next steps.

 


Crown Land Ecological Assessment Tool (CLEAT)

The provincial government is re-assessing lands that are currently leased by farmers that are designated under the Wildlife Habitat Protection Act (WHPA) and the Conservation Easement Act.  The province is addressing requests from the lessees wanting to purchase the land.  The Province will make these lands available to the lessees alone and if there is no interest then the lands will remain with their current designation.  In order for this to work, these Acts would either have to be abolished or amended.  These lands will neither be available for purchase under the TLE Framework Agreement nor will they be available to the general public for purchase.  The new Crown Land Ecological Assessment Tool will determine what quality the land is in and how sensitive the area is before determining the sale of these lands to the lessee.  There was no consultation with First Nations in developing the CLEAT model.

Traditional Environmental Knowledge (TEK)
The LRS assists in areas of Traditional Knowledge, also referred to as Traditional Environmental Knowledge. Some First Nations ask for assistance in recording sacred and cultural sites. In some cases sites need to be mapped out as well as oral testimonies recorded, and sometimes there is a potential for human remains being recovered and identified.

First Nation Land Use & Occupancy Studies

First Nations must assert jurisdiction over ancestral territories as part of the consultation process with government and industry to ensure that hunting, fishing, trapping and gathering rights are not being impacted by resource development. Terry Tobias, a leading expert in the field, facilitated two workshops and has provided recommendations for First Nations when undertaking land use and occupancy studies or mapping projects. Currently, there are no standards for use and occupancy studies anywhere in Canada. As a result, the LRS has developed a First Nation Land Use and Occupancy Policy and will vet it through the Lands and Resources Commission and Chiefs-in-Assembly. The policy is designed to assist First Nations with decision-making when contemplating a land use and occupancy mapping study. It is anticipated that many First Nations will decide either to adopt or modify the policy to suit their community needs.

Aboriginal Funding for Species at Risk (AFSAR)

The province has been experiencing an increasing decline in some of the species of plants, birds and animals. In the past year and a half the Aboriginal Inland Habitat staff have been working with the Cumberland House Cree Nation in a project entitled, "Mapping Lake Sturgeon Habitat on the North Saskatchewan River Using Aboriginal Traditional Knowledge from Cumberland House Cree Nation" The primary goal of the project was to identify and map lake sturgeon habitat by using Indigenous Knowledge Systems (IKS) gathered from Cumberland House Cree Nation (CHCN) membership and local fishers. Local Cree people possess a long history of sturgeon fishing and have an intimate knowledge of lake sturgeon ecology within the research area. The Cree knowledge that they possess has the potential to significantly contribute to Species at Risk (SAR) research, species management and protection of critical habitat. Most Cree knowledge holders are elderly and therefore there is a high level of urgency to gather their knowledge about species ecology, life history and critical habitat before knowledge is lost.

Protocol on Shared Territories

Shared territories are an increasing concern in this era of economic growth, revealing a need for a process to facilitate agreements and to resolve issues that may arise. Failure to maintain a proactive approach by First Nations on this issue could lead to conflicts, thereby giving governments and industry the upper hand in any resource negotiations. This can also affect partnership-building opportunities with industry.

From direction received from the Chiefs-in-Assembly, the LRS has completed the first draft of a model protocol, which when in final draft, will be vetted through the Lands and Resources Commission prior to being presented to the Chiefs-in-Assembly.