Achieving Certainty in Treaties with Indigenous Peoples: Small Steps Towards Adopting Elements of Recognition

Abstract

The Eeyou Marine Region Land Claims Agreement (EMRLCA) with the James Bay Cree of northern Quebec contains a novel approach to achieving certainty in treaties with Indigenous peoples. For the federal government, the certainty of having the rights of an Indigenous nation exhaustively set out in one document is the benefit derived from treaties. Unlike Aboriginal rights, which the government views as ambiguous and hard to define, treaties are negotiated agreements that clearly outline rights. The goal of government when negotiating treaties is therefore to ensure that the Indigenous group can only exercise treaty rights and not their pre-existing Aboriginal rights which are recognized by the common law and the Constitution Act, 1982.