Chapter 14

The Comprehensive Land Claims Policy

With the decision in Calder v Attorney General for British Columbia which acknowledged that the indigenous peoples of British Columbia retained title to their land since it had never been sold, ceded or conquered, the federal government had to put in place a negotiation process which would give them as much control as possible over the land they intended to exploit. At the same time, as we have seen, negotiations were proceeding for the James Bay and Northern Quebec Agreement which was finalised in 1975.

On 8 August 1973, the federal government issued a statement of policy in which it attempted to ‘signify the Government’s recognition and acceptance of its continuing responsibility under the British North America Act for Indians and lands reserved for Indians’.1 The statement signalled the federal government’s willingness to negotiate land claims in those territories which were not already the subject of a treaty and which had never been sold, ceded or conquered. This had particular application in Quebec, Newfoundland Labrador, and British Columbia. The statement continued: ‘The Government is now ready to negotiate with authorized representatives of these native peoples on the basis that where their traditional interest in the lands concerned can be established, an agreed form of compensation or benefit can be provided.’

Three government claims policies were developed: the Comprehensive Land Claims process, which deals with claims relating to unextinguished aboriginal title; the Special Claims process, which relates to claims for compensation for breach of lawful obligations on the part of the federal government, such as failure to fulfil treaty obligations or improper alienation of aboriginal assets; and a third category introduced in 1993 to deal with ‘administrative solutions or remedies to grievances that are not suitable for resolution or cannot be resolved through the Specific Claims process’.2

The Report of the Royal Commission on Aboriginal Peoples (the ‘RCAP Report’), finally published in 1996, lists the procedures common to all three policies:

• The burden of proving a claim is on the aboriginal claimants.

• Government determines the validity of the claim (without prejudice to any position that it might subsequently advance in court proceedings).

• Government can accept a claim as an alternative to litigation; litigation takes claims outside the scope of the policies.

• Government decides the parameters of what can be negotiated.

• Existing claims cannot be renegotiated.

• Government determines the basis for compensation.

• Negotiation funding can be provided to claimants in the form of loans.

• Third-party interests are not to be affected by a claims settlement.3

By stipulating these procedures, the federal government has ensured that it keeps tight control on the negotiation process, with very little option for any indigenous group except to agree to the terms or to have development of the group’s land proceed over their heads.

Further, while the James Bay Agreement was reached relatively swiftly, albeit with flaws which remained unresolved for 25 years or more, agreements under the claims policies typically take much longer. For example, despite the landmark court case of Calder as far back as 1973, the Nisga’a Nation’s Final Agreement was not reached until 1998. The Gitxsan and Wet’suweten nations are still negotiating their settlement 25 years after the decision in their favour in Delgamuukw v British Columbia. In May 2020 the Wet’suweten reached an interim agreement with the British Columbian and federal governments but, as yet, no Final Agreement is in place for either nation. The Oka crisis, a stand-off in the province of Quebec between the Mohawk people of Kahnawake and armed police when, in 1992, a Mohawk burial site was obtained by developers who intended the land for a golf course, was the trigger for the Royal Commission on Aboriginal Peoples. The RCAP Report also points out that the cause of the Oka crisis was total frustration at the lack of progress on a land claim which the Mohawk had been pursuing for two centuries.4

The federal government would only accept six claims into the process at a time, and then only after the group in question had established to the government’s satisfaction that it had occupied the land exclusively and continuously since before contact. Only then would the few groups be admitted to what was, and is, a very one-sided process in the Crown’s favour.5

As we shall see, until such time as any finalised agreement is in place, development and exploitation continue apace and rights are granted to third parties with no informed consent or even consultation of the recognised owners of the land – despite the governments’ acceptance that the indigenous peoples concerned have a valid claim to the land. The indigenous peoples fund their claims through loans taken from the federal government. As the years pass, these loans mount up, making it impossible for the indigenous parties to walk away from a negotiation table where the odds are heavily stacked against them, for fear of having no resources with which to repay the loans. By contrast, the federal government has retained powers to abandon the negotiations whenever it chooses, or to refuse to entertain a claim.

The Comprehensive Land Claims process

On receipt of advice from the Minister of Justice, it is for the Minister of Indigenous Affairs to decide whether or not to accept a land claim. The indigenous group submits the claim, which initially only has to comply with requirements which are comparatively broad – that they were not already treaty people, and that they were a distinct group who had occupied the land traditionally and continued to do so, and could produce a map identifying the boundaries of the land claimed.

Following the decision of Baker Lake v Minister of Indian Affairs and Northern Development6 in 1979, the Royal Commission adopted the criteria which the claimant group must satisfy, as laid down by the federal court in that case:

• It is and was an organised society.

• It has occupied the specific territory over which it asserts aboriginal title from time immemorial. The traditional use and occupancy of the territory must be sufficient to be an established fact at the time of the assertion of sovereignty by European nations.

• The occupation is largely to the exclusion of other organised societies.

• There is continuing use and occupancy of the land for traditional purposes.

• Aboriginal title and rights to use of resources have not been dealt with by treaty.

• Aboriginal title has not been extinguished by other lawful means.

The court in R v Sparrow stipulated that the decision to extinguish title ‘by other lawful means’ must be ‘clear and plain’. The RCAP Report points out that the stringency with which these criteria are applied depends on other political factors.7

In practice, every negotiation for a modern treaty seeks to extinguish all pre-existing indigenous rights with the exception of those specifically provided in the new treaty. In return for extinguishment, the indigenous group gets access to very limited rights to land, resources, revenue-sharing and a financial settlement which in no way represents the value of the land and resources they are relinquishing. Any settlement is as close as possible to the sovereignty which the federal government purports to exercise in the first place.

The process was reviewed in 1985 with the findings of the Coolican Report. The report struck at the heart of the problem: ‘The federal government has sought to extinguish rights and to achieve a once-and-for-all settlement of historical claims. The aboriginal peoples, on the other hand, have sought to affirm the aboriginal rights and to guarantee their unique place in Canadian society for generations to come.’8

Its recommendations included taking a starting point which acknowledged aboriginal land rights; and designing a process which was fair and less drawn out, subject to external review, which allowed for negotiations for self-government, and which provided for effective implementation of the negotiated settlements. As we shall see, despite criticism from international bodies and indigenous organisations, the federal government came up with an illusory alternative to extinguishment and placed the burden of negotiation with the indigenous group on the corporations who moved in to exploit the resources. Only in British Columbia has an outside review body been put in place (the British Columbia Treaty Commission), and its powers are so limited that it has little impact on the treaty process.

In a memorandum written on behalf of the Algonquin Nation secretariat and circulated widely to chiefs across Canada,9 Russell Diabo lists the stipulations of governments when negotiating under the Comprehensive Land Claims Policy which indigenous nations must agree to:

• accept the extinguishment (modification) of aboriginal title;

• accept the legal release of Crown liability for past violations of aboriginal title and rights;

• accept the elimination of Indian reserves by accepting lands in fee simple;

• accept removing on-reserve tax exemptions;

• respect existing third-party interests (and therefore agree to elimination of aboriginal title territory without compensation);

• accept (to be assimilated into) existing federal and provincial orders of government;

• accept application of Canadian Charter of Rights and Freedoms over governance and institutions in all matters; and

• accept funding on a formula basis being linked to own-source revenue.

These are matters which are rarely raised in public meetings designed to explain the terms of a modern treaty to those outside the charmed circle of negotiators and consultants. When in September 2012 the Harper government announced its intention to cut core funding to indigenous political organisations, Russell Diabo called on the 93 nations involved in negotiations under the Comprehensive Land Claims process to suspend their talks and to work towards a change in Canada’s land claims policies to ‘recognize and affirm’ rather than to extinguish indigenous land rights.10

Writing in 2003, Paul Nadasdy tells us that the negotiators for the Kluane First Nation Final Agreement in the Yukon worked to find a solution to the need of the Kluane to continue to hunt over their traditional lands. They came up with a usufruct which allowed the Kluane to continue to hunt over land now assigned to the Crown. However, he questions whether this is sufficient to fulfil the need of the Kluane to preserve their special relationship with the land:

We have seen … how difficult it is to translate the beliefs, practices and values through which First Nations peoples relate to animals into the language of scientific resource management. This difficulty arises in large part from the need to compartmentalize and distil these beliefs and practices so as to include them in the management process. The attempt to translate the cultural realities of First Nations peoples’ relationships with animals into the language of ‘hunting rights’ entails similar processes of compartmentalization and distillation … This compartmentalization, useful though it may be from the perspective of legal theory, ignores the fact that some of these different types of rights may be incompatible.11

Following the outcome of the Tsilhqot’in Nation v British Columbia case in June 2014, Bruce McIvor spelled out to the Union of British Columbia Indian Chiefs12 the changes needed to the Comprehensive Land Claims Policy as a result of the decision. His starting point was the government’s policy document, Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights, which had been released on 29 August 2014. He concludes that the policy document is deficient in the wake of Tsilhqot’in because it fails to change the process under which aboriginal title is recognised and preserved, it ignores the move towards the requirement for consent to development on indigenous land, it ‘imposes a unilateral approach which is inconsistent with Canada’s fiduciary relationship … and its obligations to act in good faith in negotiations’, and it fails to work towards reconciliation. One of McIvor’s recommendations is that: ‘The policy should be clear that there will be no pre-determined limits on negotiations or any resulting agreements, including with respect to the exercise of Aboriginal rights, the scope of possible economic benefits from resource development, or the exercise of Indigenous self-government.’

Christopher McKee points to the existence of certain terms of any agreement which are excluded from the Final Agreement itself. This means that they have no constitutional protection. As will be seen with the Impacts and Benefits Agreements which accompany the New Dawn Agreement, these cover all the commercial aspects of development of indigenous land – economic and employment opportunities, and loans.13 The development corporations offer the economic and employment opportunities and often the province provides the loans.

The Coalition on the United Nations Declaration on the Rights of Indigenous Peoples, comprising a wide range of indigenous organisations together with Amnesty International Canada and the Society of Friends, in its response to the policy document raises the fact that there is no mention of consent in the document, and no acknowledgement that the Crown has no beneficial interest in aboriginal-title lands. The policy documents ignore ‘international standards’ – i.e. the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – observing that, ‘The federal government cannot evade the rule of law, as determined by Canada’s highest court.’14

Another conclusion of the Coalition is that: ‘It is unconscionable to perpetuate a process, where governments steadfastly refuse to alter unreasonable positions, while debts and interest continue to build and further impoverish disadvantaged and dispossessed Peoples … Some have suggested that this relationship of indebtedness amounts to a form of extortion.’

The Specific Claims process

The notion of ‘Specific Claims’ stems from a 1969 White Paper, which included a proposal that the ‘lawful obligations’ of the Crown in Right of Canada to the country’s indigenous peoples with regard to claims which could be settled by ‘specific relief’. Whereas under the general law land and land rights are held to be capable of settlement by way of monetary compensation only as a last resort, under the Specific Claims process the Crown seeks to settle all such indigenous title claims with a sum of money. In a paper prepared for the Department of Indian Affairs, G.V. La Forest suggests that ‘… we are not so much concerned with a legal obligation in the sense of enforceable in the courts as with a government obligation of fair treatment if a legal obligation is established to its satisfaction’.15

Lawful obligations can arise from non-fulfilment of treaties or agreements; a breach of obligations under the Indian Act and its accompanying regulations; a breach arising from government administration of indigenous lands, funds or other assets; or an illegal disposition of Indian land. The claim can only be based on one or more of these breaches. Further, following G.V. La Forest’s guidelines, instead of extending the claims process beyond what can be awarded in court, the Specific Claims Policy restricts the scope of grounds to what can be achieved through the courts. In any event, the Crown determines the validity of claims and restricts the amount of compensation available. It can also choose to abandon ‘negotiations’ if the lump sum it proposes in settlement is rejected.

In 1994, Coopers & Lybrand put forward the following criticisms of the process:

• The government is seen as having a conflict of interest (acting as both judge and jury).

• The policies incorporate restrictive criteria that lead to confrontation and inhibit flexible and creative solutions.

• The process is too time-consuming and too confrontational.

• It is not directed at ameliorating the original grievance.

• The government negotiates on a ‘take it or leave it’ basis.

• Settlements do not have a long-lasting or positive effect on communities.16

The RCAP Report accepts these criticisms and further points out that the Specific Claims process does not deal with the underlying causes of the grievances of the indigenous peoples concerned.

Claims of a third kind are a sub-group of special claims for which the federal process is intended to provide ‘administrative solutions or remedies to grievances that are not suitable for resolution or cannot be resolved through the Specific Claims process’. The RCAP Report points out that the only example of such a claim is the Kanesatake claim, which was the root cause of the Oka crisis, arising in 1990 but still unresolved when they reported in 1996.17

After the Oka crisis, some amendments were made: the budget for special claims was increased, claims of a small value went into a fast-track process, the bar on claims arising before 1867 was lifted and the Indian Claims Commission was set up. The Commission had powers to review government decisions which arose under the Specific Claims process, to review specific claims which had been rejected by the minister and to mediate between the parties over which criteria were to apply to the award of compensation. However, these powers were merely advisory.

The Indian Claims Commission and the Assembly of First Nations advocated changes to the Comprehensive Land Claims process as follows:

• an independent claims body should be created;

• the government should not have power to validate claims; rather, in order to remove any conflict of interests, a separate body should validate them;

• the independent claims body should negotiate claims in order to promote fairness in the process; and

• the independent claims process or some other body should have authority to break impasses in negotiations for compensation.

The Assembly of First Nations further proposed that:

• the independent body should have power to oversee the whole claims process from research and submission through to conclusion and implementation of settlements;

• the process should be fair and equitable, with the power to bind governments;

• there should be an appeal mechanism; and

• there should be independent funding.18

The RCAP Report criticised the adversarial attitudes which hindered the creation of policy which can genuinely fulfil the Crown’s fiduciary duty, and commented that the Department of Indian Affairs had not abandoned its assimilationist mindset.19 Nevertheless, pointing to the improved living conditions and prospects of the James Bay Cree and Inuit, the Royal Commission concludes that negotiation is a better way forward than the court process.20 The question may be asked: better for whom? The Commission’s point is that courts cannot decide the detailed terms required to settle land claims – but the reality is that neither can the representatives of governments and indigenous groups who negotiate starting from a one-size-fits-all document and on a take-it-or-leave it basis. The Royal Commission looks forward to a future in which the Specific Claims Policy can be dispensed with because treaties will include an effective dispute resolution clause.

In their work with the Yupik people, Phyllis Morrow and Chase Hensel point to the ethno-centrism of the governments, corporations and advisers involved. They perceive indigenous beliefs about the flora and fauna which they have managed for millennia to be ‘non-rational’ without being aware of their own cultural bias: ‘The regulators canonize the biological model of population dynamics even when, as is often true in the Arctic, population figures are sketchy, variables are numerous, and the dynamics are not well understood, all leaving sufficient room for the undue influence of Western beliefs in making actual management decisions.’21

Working with the Kluane people, Paul Nadasdy describes the indigenous perception, which privileges ‘the primary role of personal experience, the non-sentential nature of that knowledge, the importance of animals as teachers … the importance of patience’.22

Morrow and Hensel noted that the more the Yupik took a stand for their traditions in negotiation, the more they presented an ‘anosynchronic view of themselves’ and the more dependent the negotiators became on the lawyers and consultants. Thus, the negotiations focussed on the more assimilated aspects of modern indigenous life to the exclusion of their tradition. Because they speak English, wear clothing from catalogues and use modern technology, they are expected to conform to the same norms as Euro-Canadians and to lose their aboriginal rights. This in turn leads them to question the authenticity of their own identity.23

The Canadian public’s point of view

When the Nisga’a Treaty was negotiated in British Columbia, Canadian public opinion was deeply suspicious of the rights ‘granted’ to the Nisga’a and other indigenous groups. Before the decision in Calder, British Columbia had consistently refused to acknowledge indigenous land rights. The provincial government embarked on a vigorous public relations exercise.24 When the vote was held to ratify the treaty, Canadian businesses, backed by the press, were vociferous in expressing the opinion that it was undemocratic to exclude them from the vote. The campaign in opposition to the treaty, which led the call for a province-wide vote on the issue, relied on many inaccuracies and appealed to the fears of Canadians. Ponting records that this campaign of fear eventually turned public opinion against the protesters. In any event the government’s greater financial resources enabled it to run an effective polling campaign which turned public opinion in its favour. The government campaign cost C$7.6 million.25 Yet Christopher McKee tells us that polling in the run-up to the Nisga’a Treaty put the ruling New Democratic Party at an all-time low.26

There was a vigorous anti-treaty movement led by a former attorney general of the province and a local radio station. The logging and forestry industries in British Columbia were initially deeply opposed to the granting of any land rights to indigenous peoples, but came to realise that the settlements gave greater certainty as to the ownership of land. The commercial fishing lobby was never reconciled to indigenous ownership of land.27 However, taken all in all, it would appear that in the 21st century settler Canadians are better disposed towards land settlements, as they open the way to resource exploitation on native land, which in turn provides more much-needed jobs.

Extinguishment

Historically, acquisition of indigenous lands by the Crown has always been seen as an extinguishment of indigenous rights in the land, and the first step in the process of transferring it into private ownership. The Royal Commission on Aboriginal Peoples urges the Crown to take heed of its positive obligation to protect indigenous lands and resources, concluding that it must allow indigenous peoples much greater control over their territories and resources. It advocates that the Crown abandon its insistence on extinguishment and that the burden of proof of ownership of land should pass from the indigenous people to the governments who seek to take their lands. Further, it says that the government should not place arbitrary limits on the compensation available to settle specific claims. It reminds the Crown that ‘Aboriginal rights do not exist by virtue of Crown title; they exist notwithstanding Crown title … A fiduciary should not attempt to destroy what it is required to protect.’28 Moreover, in order to make indigenous communities viable, it calls for significant expansion of the aboriginal land base, together with greater access or control over lands and resources outside the boundaries of that larger land base.29 The Royal Commission further points out that indigenous peoples regard land and its resources as living things which require respect and protection.30

Finally, the RCAP Report says that: ‘There must be a presumption in such negotiations that Aboriginal signatories did not intend to consent to the blanket extinguishment of the Aboriginal rights and title by agreeing to a treaty relationship.’

Back in 1994, the federal government had considered the option of not insisting on such an extinguishment. In 1995, it released a fact-finding report, Canada and Aboriginal People: A New Partnership, also known as the Hamilton Report. Hamilton concluded that extinguishment was not necessary in order to achieve future certainty in relation to the land. This could be achieved instead by mutual assurances of good faith and an effective dispute resolution provision in the Final Agreement, together with the inclusion of an amendment process. He also believed that less convoluted language in modern treaties and shorter, plainer documents would contribute to greater certainty.

Hamilton’s report did not consider that: ‘… there are any circumstances that warrant even a partial extinguishment or surrender of Aboriginal rights whether one is dealing with Aboriginal rights in general or more specific Aboriginal rights with respect to land and resources’.31

Tom Berger had also 20 years previously raised the issue of extinguishment, and what it means to indigenous peoples, when he delivered his 1977 report following the Mackenzie Valley Pipeline Inquiry: ‘Native people desire a settlement of native claims before a pipeline is built. They do not want a settlement – in the tradition of the treaties – that will extinguish their rights in the land. They want a settlement that will entrench their rights to the land and that will lay the foundations of native self-determination under the Constitution of Canada.’32

Asch and Zlotkin33 point to the conflicting positions of the Crown and indigenous peoples, in that the Crown sees extinguishment as essential in resolving outstanding issues while the indigenous peoples see it as a block to resolution of fundamental issues at the negotiating table. They call for an approach which reconciles these differences, and in particular a starting point which recognises the validity of indigenous title. They remind us of the dictum in R v Sparrow to the effect that sovereignty and underlying title was vested in the Crown. Thus, the court had never made an attempt to define indigenous land rights until the matter came before it in Tsilhqot’in. It has thus historically been easy for the Crown to rely before the court on an argument that indigenous rights are uncertain and a barrier to economic development, and that therefore they should be extinguished either by agreement with the peoples concerned or by unilateral government act.

So far as the Innu of Matimekush Lac John are concerned, all their rights to their traditional lands have been extinguished by unilateral government Act, as we shall see in the following section. Perhaps the most insulting feature of this government policy is that the government insists that certainty is necessary for the future of the indigenous people who, the government says, are happy to exchange their broad rights over large areas of land which they know intimately and have a duty to protect for limited rights to a very small parcel of land, those rights having been prescribed in a very one-sided Final Agreement.34 Paul Nadasdy says that the Canadian approach to land claims settlements is nothing more than ‘an attempt to incorporate Aboriginal peoples’ unique relationship to the land into the existing legal and political institutions of the Canadian state’.35

There have been countless indigenous criticisms of extinguishment, strong condemnation by Canada’s own Royal Commission on Aboriginal Peoples, and a recommendation for the policy’s abandonment by the United Nations Human Rights Committee in light of its incompatibility with Article I of the International Covenant on Civil and Political Rights. On 1 November 2002, the Committee on the Elimination of Racial Discrimination noted in its concluding observations that:

The Committee views with concern the direct connection between Aboriginal economic marginalization and the ongoing dispossession of Aboriginal people from their land, as recognized by the Royal Commission. The Committee notes with appreciation the assurance given by the delegation that Canada would no longer require a reference to extinguishment of surrendered land and resource rights in any land claim agreements. The Committee requests that in the next periodic report, information be provided on the significance and consequences of limitations imposed on the use by Aboriginal people of their land.36

Currently, the legal framework of land claims agreements gives virtually no room for manoeuvre for any indigenous party that may feel aggrieved by any of the provisions in the agreement itself. However, if they look outside the Canadian state system, they will see that there is a considerable body of opinion that finds these land claims procedures unacceptable. Since 2005 the Assembly of First Nations has challenged the extinguishment requirement, which is now contrary to Articles 8(b) and 10 of UNDRIP, and which should also be considered in the light of Article 19, which requires fully informed prior consent.

These three Articles of UNDRIP would, should they ever pass into Canadian law, prevent Canada and its provinces from introducing extinguishment clauses such as the ‘certainty’ clause in the New Dawn Agreement in Principle (AIP), signed but as yet unratified by residents in the two Innu villages in Labrador.

Article 8 (b) of UNDRIP says: ‘States shall provide effective mechanisms for prevention of, and redress for … any action which has the aim or effect of dispossessing them of their lands, territories or resources’, and Article 10 states: ‘Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.’

The certainty and indemnity clauses in the New Dawn AIP amount to another, more insidious, form of extinguishment and impose even more restrictions than the old and much-discredited policy – most bizarrely in binding indigenous peoples’ actions and court authority in the future. In 2005, the UN Human Rights Committee’s country report on Canada commented specifically on this, especially as it relates to the Innu peoples:

The Committee, while noting with interest Canada’s undertakings towards the establishment of alternative policies to extinguishment of inherent aboriginal rights in modern treaties, remains concerned that these alternatives may in practice amount to extinguishment of aboriginal rights. (Articles 1 and 27)

The State party should re-examine its policy and practices to ensure they do not result in extinguishment of inherent aboriginal rights. The Committee would like to receive more detailed information on the comprehensive land claims agreement that Canada is currently negotiating with the Innu people of Quebec and Labrador, in particular regarding its compliance with the Covenant.37

With particular reference to the Comprehensive Land Claims process, the Report condemns Canada’s insistence on ‘full and final certainty’, which it says is unattainable. The Report observes: ‘An overarching concern is that the Government appears to view the overall interests of Canadians as adverse to aboriginal interests, rather than encompassing them.’

It highlights the minimal attention which the Canadian government pays to aboriginal rights and its adversarial approach in negotiations. Stephanie Irlbacher-Fox tells us that the Dehcho First Nation, among the first to sign a land settlement agreement, found an alternative solution: ‘The Dehcho First Nation and Canada intend their relationship to be based on mutual recognition and sharing and to achieve this mutual recognition and sharing by agreeing on rights rather than by extinguishing rights.’38

The UN Human Rights Committee report criticises the mounting costs for all parties, in particular the loans with which the government saddles indigenous parties. These stood at more than C$700 million at the time of the Special Rapporteur’s investigation and, the Report observes, remain owing even if the government withdraws from the negotiations.

The UN report also highlights the fact that delays in the negotiations can mean that the indigenous people must stand by and watch their land destroyed by mines or dams with no agreement in place. This is exactly what has happened at Muskrat Falls.

Momentum for this criticism of Canada’s policies, which many indigenous groups see as a perpetual lack of good faith, is steadily building. In February 2012, the Assembly of First Nations and other independent groups travelled to Geneva to submit an alternative report to the one submitted to the Committee on the Elimination of Racial Discrimination by the Canadian government. They alleged that the Canadian government has not, as required, consulted with indigenous groups or NGOs and had produced a sanitised version of events in Canada. Specifically, Chief Wallace Fox of the Onion Lake Cree Nation argues that Canada cannot claim title to much of the land it asserts to possess, that it continually confiscates indigenous lands which even under the treaties were not ceded, and that it is not meeting other requirements to ensure that indigenous peoples live free from discrimination.39 In 2017, in its conclusions to its report on Canada, CERD called upon Canada to ‘prohibit the environmentally destructive development of territories of Indigenous Peoples, and to allow Indigenous Peoples to conduct independent environmental impact studies’.

Liberal Prime Minister Justin Trudeau is only now fulfilling his promise to pass UNDRIP into domestic law but, despite the fact that this would drive another nail into the coffin of unilateral extinguishment, it will come too late for the Innu resident in Labrador. In the next section, we will look further at their struggle to recover their lost James Bay lands and the position of all Innu with regard to Tshash Petapen, the New Dawn Agreement.