3. CHAPTER 3: LENGTHY, SLOW AND INEFFECTIVE: THE CASE OF THE
3.1 Canada’s Comprehensive Land Claims Agreements Process
Coates (1992, p.3) states that “all provinces and territories in Canada now find themselves addressing native demands of greater or lesser complexity.” It means that every year, both provincial and federal governments expend considerable amounts of money and resources trying to deal with the myriad of land claims made by the First Nations of the country. As Belanger and Lackenbauer (2014) show in their study on the direct actions of protest taken by Indigenous peoples in Canada over the twentieth century, there is a lot of anger, frustration and a widespread sense of unfair treatment regarding their relationship with Canada, which fueled significant massive social movements like the recent Idle No More movement (PALMATER, 2015; COATES, 2015). However, as Coates (1992, p.3) affirms, “the highly- publicized contests, of course, tell only part of the story. For every stand-off, road blockade, and other such public conflict, there are literally dozens of low-profile demands, negotiations, and controversies across the country.” Land claims negotiations are certainly part of them.
It is common sense among Canadian scholars on Indigenous policy that the famous Calder vs. Attorney-General of British Columbia in 1973 is the judicial precedent to recognize Aboriginal title in Canada. It was a pathbreaking case brought to trial by the Nisga’a people leader Frank Calder in 1969, seeking a declaratory judgment that the Nisga’a held the Aboriginal title to the land, an essentially usufructuary and inalienable interest that was never extinguished. At the end of the trial, the Nisga’a lost the dispute, and the dissenting judgment of Justice Emmet Hall–
that the sovereignty of the Crown and the rights derived from the fact of the prior occupancy of the land by Native groups must be reconciled- was convincing enough
217 Christopher Alcantara (2013) provides the most detailed account of the CLCA in Canada and this section relies substantially on it, providing some additional information when needed.
to encourage the Canadian government to adopt the policy of modern treaties, or Comprehensive Land Claims Agreement Policy in 1973218 (ASCH, 2014).
The first real test of the new policy was in the James Bay and Northern Quebec Agreement (JBNQA) in 1975, which serves as the precedent to the modern- day Comprehensive Land Claims Agreements (ASCH, 2014). There was a pressing necessity of the Robert Bourassa liberal government to develop a massive infrastructural project – a huge Hydroelectric Power plant- at the James Bay, in Quebec’s north, the traditional land of the Cree and Inuit people219. Those peoples could obtain a series of protections regarding their traditional activities such as hunting and fishing – not to mention monetary compensation- in exchange for the agreement of the extinguishment of rights based on the pre-existence of their societies. Concluding, following Asch (2014, p.21) “as can be seen, the position taken by the government of Canada in the 1970s generated a precedent that largely remains in place today.”
The stated goals of the CLCA policy are: 1. Provide certainty over the property, use and of the land and resources management; 2. Clarify duties and rights of all parties involved; 3. Establish the rights that non-Natives have living within indigenous territory; 4. Determine to which extent First Nations and other government levels are to legislate over territorial and resource-based disputes; 5. To set out clear rules and provisions of self-governance, its powers and the scope of jurisdiction and how these powers will work in partnership with other levels of government; 6.
Establish the total amount of a cash compensation to be paid to the Indigenous groups as well as a payment schedule; 7. Support and strengthen Nativel ways of living related to territory, spiritual beliefs, economy and political organization.
Besides First Nations, there are usually many governmental partners involved in some stage of the negotiations. The AANDC Comprehensive Claims Branch (CCB) represents the Canadian government in all negotiations with native groups in
218 The process is told with greater detail on the Michel Asch quoted book, On being here to stay: treaties and Aboriginal rights in Canada.
219 It is curious to contrast the construction of the Hydro Dam at James Bay and the infamous Belo Monte Dam in Brazil almost forty years later. Both were considered strategic infrastructural projects to provide a new source of energy by nationalist and developmental governments; both were constructed on lands considered remote and depopulated; both had to deal with the fact that Indigenous peoples lived there and strived to have their claims heard. On the other hand, as Professor Stephen Grant Baines (personal communication) rightfully notes, there is a crucial difference between them: whereas the Hydro Dam at James Bay effectively produces energy and is a strategic power source for the Province of Québec, the Belo Monte Dam is a “white elephant”. However, a full comparative research is yet to be made.
all territories and provinces except British Columbia, where it is carried out by the Federal Treaty Negotiation Office. When the negotiations start to “take off”, other governmental agencies may take part in the discussions, among others: Parks Canada Agency; Environment Canada; Fisheries and Oceans Canada, Natural Resources Canada; Canadian Heritage.
The Core Federal Team consists of a Chief Federal Negotiator, a legal council, and analysts. The Provincial/territorial governments have the right to participate in the discussions.
In short, the negotiations process is one in which Indigenous peoples confirm that they are reconciling their political rights with the Crown’s sovereignty. Or to put it another way, in return for recognition of a limited set of rights, Indigenous peoples affirm that Canada has sovereignty and jurisdiction, and thus that settlers are legitimately here to stay. That is the consequence of choosing the path that the 1995 policy describes as ‘clearly preferable as the most practical and effective way to implement the inherent right to self-govern (ASCH, 2014, p.28).
Scholtz (2006, p.34, highlighted in the original), for her turn, summarizing her point of view of the process, states:
By engaging in land claims negotiations, governments: 1) validate indigenous peoples as bearing collective property rights (the recognition dimension); 2) accept shared political responsibility for future policy outcomes (the delegation dimension). Negotiation is, therefore, a highly political method of resolving an underlying land grievance.
As Picard (2013, p.13, translated by the author), Chief of the Quebec and Labrador First Nations Assembly notes, one should not confound land claims negotiations with a more usual negotiation, such as union negotiations on workers’
contracts, since they have as a goal “to recognize rights existing since long time and that have never been abandoned, erased or alienated”220.
The next topic deals with the practicalities of the land claims negotiation policy in Canada, discussing its main stages and topics.
Stages of the Comprehensive Land Claims Process in Canada
The Comprehensive Land Claim Agreement policy follows four stages which includes an additional stage of implementation. The features of each stage are described below:
a) Submission of claim: the process starts with the preparation of a “statement of claim”, a formal declaration by the First Nation to the competent authorities (provincial, federal or territorial governments), which brings supportive material such as maps and anthropological reports that identify the group and the broader scope of the claimed geographical area of their traditional territory.
The Ministry of Aboriginal Affairs, with the advising of the Ministry of Justice, may accept or refuse the claim. Once it is accepted, the “assessment process”
period begins, and arguments as well as claims made by the group should be confirmed trough archeological and anthropological evidence, which is a timely process.
b) Framework Agreement (FA): after the formal acceptance of the claim, the parties involved start the first round of negotiations to agree on the topics that will be discussed in greater detail later. The FA works as an agenda for the negotiations, specifying the issues that will be covered, how they will be debated and a work plan for reaching out an Agreement-in-Principle;
c) Agreement-in-Principle (AIP): The “deal-making stage” is the period when the negotiating parties should reach substantial agreements over the issues
220 From the original in French, “[…] à faire reconnaître des droits existant depuis fort longtemps et qui n’ont jamais été abandonnés, éteints ou aliénes”
debated, and these agreements compose the Final Agreement. The latter, for its turn, should state clearly all the terms negotiated by the state and the First Nation. Finally, all involved should develop a AIP and Final Agreement ratifying plans;
d) Final Agreement and Ratification: In the final negotiations, the Canadian government is advised by consultants and working groups in order to guarantee that the concerns of all parties involved were fairly addressed and are protected by the Final Agreement. All groups have the opportunity to share information with their constituencies in public forums with the presence of local stakeholders;
e) Implementation: state and First Nations’ negotiators design mechanisms to deliver and evaluate all Final Agreement provisions. This stage is very time- consuming due to the complex tasks to be accomplished, which include the drafting of legal documents and land titling.
During the steps 3 and 4 of the CLCA negotiation some relevant aspects are discussed, among them:
a) Financial aspects, preparedness and negotiation costs: The Federal government has a fund available to help First Nations groups that aim to present their claims in accordance with federal legislation. Varying with the complexity of each particular case, this financial contribution can reach a maximum amount of 3.5 million Canadian dollars. First Nations’ negotiators – to a maximum of five persons- may receive salaries and benefits during the negotiations, which is deducted from the final cash compensation at the end of the agreement. If a native group desires to hire another consultant or team member, they must do it at their own expense. There are some negotiation preparedness initiatives, prior to the first stage of the CLCA, which were designed to fund the training of Indigenous groups for negotiations, and these costs are part of the negotiation costs to be calculated at the end of the process;
b) Overlaps: there are many and significant cases of overlapping of claimed territories among native groups and territories that are in two adjacent provinces or territories, especially in British Columbia. The idea is that the dispute over overlapping territories should be resolved among the groups before starting CLCA negotiations;
c) Interim Measures and Complementary Agreements: Agreements bilaterally signed with specific goals and actions can be made during the negotiation process. They are usually “time-limited” to incentive the participants proceed with Final Agreement negotiations. Administrative acts can be signed as well, but these acts lack the constitutional protection of the Final Agreement.
d) Third party consultations and compensations: Consultation of local stakeholders may be affected by provisions in the agreement. The Canadian government seeks a public understanding of the agreements and actively make efforts to share information about these agreements.
The future cash compensation in case of harm inflicted to a third party can be addressed through the establishment of a bilateral committee.
e) Legislative Consultation: local legislations can be very different from federal legislation and, therefore, it is important to consult local authorities to discuss future legal conflicts and mechanisms to overcome these conflicts. It should be stressed that there is a significant importance of constructing cooperative channels with local governments in order to avoid any issues related to the implementation of the agreement dispositions.
f) Indian Act Transition: Once the Final Agreement is signed, some conditions of the Indian Act may not be applicable to the native group in question and, for this reason, it is important to make a soft transition between the two legal frameworks.
As one can see, the policy design relies strongly on the capacity of the parties involved to talk, express their concerns, grievances, doubts, fears, arguments and reasons to bargain. Despite the shortcomings and many obstacles that may hinder the completion of a CLCA221, it is evident, as Scholtz (2006, p.14) states, that land claims negotiations accord indigenous peoples and indigenous authority structures an explicit recognition of their role as strategic political actors involved in a dialogue with the government.”
Conclusion: the general trend of Canada’s Indigenous policy
Pressed by the urgencies of colonization of such a vast territory, colonial powers had to settle peace and military treaties with the natives of North America, acknowledging in the process some Aboriginal title over the lands they occupied.
This “nation-to-nation approach”, later became a relationship where Indigenous groups were meant to be completely assimilated into mainstream society, as the infamous Residential School System bore witness.
The historic treaties settled throughout the centuries between the British Crown and later the Canadian state and the Indigenous groups released vast amounts of land to agriculture and economic activities in provinces such as Ontario and Québec and served as a significant part of the Canadian contemporary territorial base. At the same time, First Nations were progressively confined in small areas, which contributed to spreading of diseases and mitigating their political organization and traditional economic activities. As Poelzer and Coates (2015, p.7) state, “one of the strongest assumptions governing Aboriginal affairs in Canada (and the United States and Australia) was that Indigenous people would disappear”. By the end of the nineteenth and the beginning of the twentieth century, state agents were just waiting for the complete integration of Native groups to the western lifestyle.
After the massive mobilization of Indigenous groups in the sixties of the twentieth century, Canada set out a policy to address native land claims, which was the Comprehensive Land Claims Agreement policy, among other policies addressing
221 It is worth noting, in this regard, the unique approach of Cristopher Alcantara’s (2013) book on the factors that influence the reaching of an CLCA and factors that speed up the process.
self-governing issues. Thus, since 1972, native groups have been able to push forward their territorial agenda, though still being among the poorest communities in the country.
In sum, the Canadian Indigenous policy can be described just as assimilationist, racist and dubious as the Brazilian Indigenous policy. However, regardless some significant differences between the countries related to the historical approach to Indigenous issues, the similarities between them are more salient.
Highlighting these similarities, we intend to make a clear point that the challenges Indigenous peoples face in both countries could be conceptualized through a more comprehensive approach, leading to insights which may be useful when it comes to delineating practical solutions to them.