Comprehensive Land Claims

From Calder to a Policy

Treaty 4, signed at Fort Qu'Appelle in 1874, settled the question of land title for the territory where Muscowpeting, Piapot, Peepeekisis, Standing Buffalo, and Okanese First Nations live today. Not every part of Canada has a treaty like that. In large stretches of British Columbia, northern Quebec, and the territories, no treaty was ever signed, and for most of Canada's history the federal government simply assumed it held clear title to that land anyway.

That assumption held until 1973. Frank Calder, a Nisga'a chief and the first Indigenous person elected to the British Columbia legislature, brought a case to the Supreme Court of Canada arguing that Nisga'a title to the Nass River Valley had never been lawfully given up. The Nisga'a lost the case on a technicality: one judge ruled they needed government permission to sue that they had not obtained. But six of the seven judges agreed on something Canada had never officially recognized before: Aboriginal title exists in Canadian law, independent of any treaty. The federal government responded that same year, releasing its Comprehensive Land Claims Policy in August 1973.

That policy created a three-stage process still used today: a framework agreement that sets out what will be negotiated and on what timeline, an agreement-in-principle that works through the substance but carries no legal force, and a final agreement that becomes a modern treaty once every party signs and ratifies it. The Nisga'a themselves show how long this can take. Negotiations opened in 1976, a framework agreement followed in 1989, British Columbia joined in 1990, an agreement-in-principle came in 1996, and the Nisga'a Treaty was not signed until 1999 and did not take legal effect until 2000, twenty-seven years after Calder's case reached the Supreme Court. Since 1973, Canada has signed 26 comprehensive claims and four additional self-government agreements this way, settling Aboriginal land rights across roughly 40 percent of the country's land mass.

The James Bay and Northern Quebec Agreement

In the early 1970s, Quebec premier Robert Bourassa announced a massive hydroelectric project for the James Bay region, on land the Cree and Inuit had lived on and used for generations. Quebec did not consult them first. In November 1972, the Cree, working with the Northern Quebec Inuit Association and the Indians of Quebec Association, took the province to court, arguing that land transfer agreements from 1898 and 1912 had already obligated Quebec to negotiate any surrender of their land rights. In November 1973, Judge Albert Malouf agreed and ordered construction stopped. Quebec's Court of Appeal suspended that ruling within days, but the pressure had already forced Quebec back to the negotiating table.

The Cree formed their own political body, the Grand Council of the Crees of Quebec, and on November 11, 1975, the James Bay and Northern Quebec Agreement was signed by the Cree, the Inuit, Hydro-Québec, and the governments of Quebec and Canada. It is widely considered Canada's first modern treaty. Quebec agreed to pay $225 million in compensation over twenty years, $90 million of it to the Inuit. The agreement divided the territory into three land categories: roughly 14,000 square kilometres reserved for exclusive Cree and Inuit use and local government, a much larger area where they held exclusive hunting, fishing, and trapping rights, and the remainder of the region, where Quebec's authority applied but Indigenous harvesting rights stayed protected. The agreement also created new Cree school boards and health services and the James Bay Native Development Corporation, and in 1984 it led to the Cree-Naskapi Act, Canada's first Indigenous self-government legislation.

The story did not end in 1975. Through the 1980s and 1990s, the Cree repeatedly accused Quebec of failing to live up to its obligations under the agreement, and in 1995, during Quebec's independence referendum, the Cree declared they had the right to decide their own political future regardless of the province's vote. It took until 2002, with the Paix des Braves agreement, for Quebec and the Cree to resolve that period of tension. A comprehensive claim does not end the day it is signed. It opens a relationship that both sides have to keep working at.

References

1. Crown-Indigenous Relations and Northern Affairs Canada. "Comprehensive Claims." Government of Canada. https://www.rcaanc-cirnac.gc.ca/eng/1100100030577/1551196153650

2. Cruickshank, David A. "Calder Case." The Canadian Encyclopedia, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/calder-case

3. Turcotte, Yanick. "James Bay and Northern Quebec Agreement." The Canadian Encyclopedia, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/james-bay-and-northern-quebec-agreement

4. Grand Council of the Crees (Eeyou Istchee) / Cree Nation Government. "Agreements." https://www.cngov.ca/governance-structure/legislation/agreements/

5. Makivvik Corporation. "JBNQA." https://www.makivvik.ca/corporate/history/jbnqa/