4.2 Modern Treaties and Self-Government Agreements

Nations activated the Medicine Chest Clause to call on the federal government to provide necessary health care supports (supplies, infrastructure, staffing), as per the treaty obligations, and to help work through any potential outbreaks (Dubois, 2020). Canada has responded through a collaborative approach with the Assembly of First Nations, regional chiefs, and other COVID-19 response committees to ensure the needs of First Nations communities are properly addressed (Narine, 2020).

Other numbered treaties also discussed and negotiated health care provisions, although these provisions did not reach treaty text and are thus not always considered by the federal government (Craft & Lebihan, 2021). Historic treaties 1-5 included implied commitments to health care, while treaties 7-11, received verbal commitments (Craft & Lebihan, 2021). In 2017, the Alberta provincial court interpreted Treaty 7 to include the same benefits as under the Treaty 6 Medicine Chest Clause, on the grounds of oral promises made at the time of Treaty 7 negotiations between the Crown to the five signatory First Nations: the Kainai (Blood), Siksika (Blackfoot), Piikani (Peigan), Nakoda (Stoney), and Tsuu T’ina (Sarcee). Each First Nation was determined to have the treaty right to health care resources protected by Section 35 of the Constitution Act (1982). The Alberta provincial court explains:

…treaties were written in advance by the federal government and did not record all the promises made by the Crown during treaty negotiations. As a result, verbal promises made during the negotiations are considered part of the treaty obligations. (Health Sciences Association of Alberta v. Siksika Health Services, 2017).

This interpretation is of much significance, as it may apply to other historic treaties, such as Treaties 8, 9, 10, 11, where oral promises had also taken place (Craft & Lebihan, 2021). However, further court interpretations pertaining to these treaty nations have yet to be identified.

© Credit: iStockPhoto.com, ID 519270910 4.2 Modern Treaties and Self-Government Agreements

Modern treaties (or Comprehensive Land Claims Agreements) and self-government agreements (the written form to detail how First Nations will exercise their inherent right to self-government) were initiated in the 1970s. Modern treaties came first, following the landmark Supreme Court of Canada case, Calder v. Attorney General of British Columbia (1973).

In 1973, the Nisga’a Nation challenged the province of British Columbia, claiming its nation had never lawfully extinguished their Aboriginal title to their traditional lands and territory through any legal or treaty means (Calder v. Attorney General of British Columbia, 1973). In other words, the Nisga’a Nation turned to the

judicial system to assert their land sovereignty and ownership. This claim was previously introduced in, and dismissed by, the British Columbia provincial court and Court of Appeal. At the Supreme Court of Canada, six out of seven judges recognized and acknowledged the existence of Aboriginal title to the Nisga’a Nation prior to European settlement in their final decisions; although they were evenly split on whether or not such titles continued to exist in the Nisga’a territory following colonial laws and British Columbia’s adoption under the British Crown (Calder v. Attorney General of British Columbia, 1973). One judge ruled against the claim, based on a technicality within the court process.

Nevertheless, for the first time in Canadian history, the Supreme Court of Canada acknowledged the existence of Aboriginal title to land as a valid legal concept in Canadian common law. Furthermore, the legal concept of Aboriginal title to land derived and was accepted from traditional Indigenous legal systems, as opposed to colonial law (Salomons, 2009). This acknowledgement paved the path forward for Canada to adopt a new policy position regarding treaty and land negotiations with Indigenous communities and their unceded territories; thus, leading to the federal Comprehensive Land Claims Policy and the beginning of modern treaty negotiations. The Comprehensive Land Claims Policy (1973) sets out the terms and conditions for how the federal government approaches Aboriginal title, rights, and land claims, through a negotiation process between Indigenous communities and the provinces and territories (CIRNAC, 2019, 2020). The negotiation process established Comprehensive Land Claims Agreement in areas where historic treaties do not exist. The James Bay and Northern Quebec Agreement (1975) was the first Comprehensive Land Claims Agreement to result from the policy and continues to be a key example for other communities interested in stating their land claim (Appendix B provides further details on the James Bay and Northern Quebec Agreement).

The Comprehensive Land Claims Policy was later updated in 1981 and 1986 to reflect developments and adjust the negotiation process based on user feedback and measures found to be discriminatory (McKnight, 1986). Of particular concern was the initial requirement to extinguish all Aboriginal rights and titles upon establishment of a settlement agreement. Indigenous groups and leaders found this “blanket extinguishment” (p. 6) to affect Aboriginal rights unrelated to the land claim and to be largely inconsistent with Section 35 of the Constitution Act (1982) and its specific intention to affirm and protect Aboriginal rights and titles (McKnight, 1986). The policy was thus revised to implement alternative approaches to rights extinguishment, as well as to narrow its scope to focus on use of and title to land and resources, distancing the policy from any other rights outside this realm (McKnight, 1986).

The Comprehensive Land Claims Policy has since gone into, and is currently under, an internal review by the Government of Canada and national Indigenous organizations, with engagement opportunities to involve the public (Aboriginal Affairs and Northern Development Canada [AANDC], 2014). The interim policy, Renewing the Comprehensive Land Claims Policy Towards a Framework for Addressing Section 35 Aboriginal Rights, was released in 2014. The new policy intends to be developed “incrementally” and to act as a “starting point for discussions with partners” (AANDC, 2014, p. 3). The key focal points of the policy updates are to better align the Comprehensive Land Claims Policy with Section 35 of the Constitution Act (1982), as well as ensure treaty and other agreement processes are grounded in principles of reconciliation with Indigenous Peoples. These updates include provisions to construct agreement negotiations with predictability, clarity, and “without the need for extinguishment” of Aboriginal rights and titles (AANDC, 2014, p. 7). The interim policy remains in effect to date.

Self-government agreements between First Nations, Inuit, or Métis communities, and the Government of Canada were introduced into the public and political spheres in the 1990s. In 1995, the federal government implemented the Inherent Right to Self-Government Policy, which continues to be of relevance in today’s political context (CIRNAC, 2019). The policy reiterates the federal government’s recognition of Indigenous People’s inherent rights to self-government, as affirmed under Section 35 of the Constitution Act (1982) and expressed in modern and historic treaty relationships (Irwin, 1995). Moreover, the policy outlines the process to reach and implement self-government agreements; describes varying approaches for Indigenous communities to define how they will exercise selfgovernment, through mediums such as new or existing treaties, individual agreements, legislation, contracts, or memorandums of understanding; and defines areas in which communities may negotiate individual agreements to assume control in health, social services, housing, education, among other sectors (Irwin, 1995).

This report found 32 completed modern treaty and selfgovernment agreements, 28 of which have specific provisions related to Indigenous health. Appendix B lists each of the modern treaties and selfgovernment agreements, along with a description of their relationship to Indigenous health or health care, as applicable. Table 2 outlines the key findings.

© Credit: iStockPhoto.com, ID 985158944

Table 2. Key Findings in Comparing Modern Treaty and Self-Government Agreements

Finding

Includes provisions to ensure Indigenous representation at their signatory provincial or territorial policy tables, so as to inform health care policy discussions based on community experiences and priorities

Includes provisions pertaining to First Nations and Inuit law-making authority on matters concerning public health, management of health care, and administration of health programs and services

Establishes community jurisdiction to authorize, license, and regulate the practice of Aboriginal healers Establishes community jurisdiction to regulate traditional healing services and medicines specific to the signatory community

Modern Treaty/Self-Government Agreements

• Champagne and Aishihik First Nations Final Agreement (1993) • Nacho Nyak Dun First Nation Final Agreement (1993) • Teslin Tlingit Council Final Agreement (1993) • Vuntut Gwitchin First Nation Final Agreement (1993) • Little Salmon/Carmacks First Nation Final Agreement (1997) • Selkirk First Nation Final Agreement (1997) • Tr'ondëk Hwëch'in Final Agreement (1998) • The Ta'an Kwach'an Council Final Agreement (2002) • Kluane First Nation – Final Agreement (2003) • The Kwanlin Dun First Nation Final Agreement (2005) • Délınę - Sahtu Dene and Metis - Self-Government Agreement (2016) • Northeastern Quebec Agreement (1978) • Sechelt Indian Band Self-Government Act (1986) • Nunavut Land Claims Agreement (1993) • Nisga'a Final Agreement (2000) • Carcross/Tagish First Nation Final Agreement (2005) • Tsawwassen First Nation Final Agreement (2007) • Maa-nulth First Nations Final Agreement (2009) • Sioux Valley Dakota Nation Self-Government Agreement (2014) • Tla'amin Nation Final Agreement (2014) • Nisga'a Final Agreement (2000) • Tsawwassen First Nation Final Agreement (2007) • Tla'amin Nation Final Agreement (2014)

• Westbank First Nation Self-Government Agreement (2005) • Sioux Valley Dakota Nation Self-Government Agreement (2014) • Délınę - Sahtu Dene and Metis - Self-Government Agreement (2016)