Ottawa Rethinks Its Approach to Comprehensive Claims

John Merritt

Since the beginning of European expansion into the New World, the rights of indigenous peoples has been a topic of debate. Nowhere has that debate been more intense, or left more inconclusive, than in Canada. Unlike the situation in the United States, where the courts have defined a fairly clear line of judicial opinion on the issue of aboriginal title, Canadians still await definitive legal pronouncements. The meaning of constitutional protection afforded aboriginal rights in 1982 is only now becoming clear as leading cases work their way to the Supreme Court of Canada. It is against this backdrop that the federal government and aboriginal groups continue their efforts to negotiate out-of-court solutions. The new federal claims policy is the most recent attempt to find a negotiating formula that works.

 On 18 December 1986, Minister of Indian Affairs and Northern Development Bill McKnight revealed to the House of Commons the federal government's long-awaited response to the Task Force to Review Comprehensive Claims Policy. The task force had been appointed in July 1985 by Mr McKnight's predecessor, David Crombie, to "conduct a fundamental review of the federal comprehensive claims policy". Chaired by former CARC Executive Director, Murray Coolican, the task force completed its work on time and within budget, and submitted its report in December 1985. Logistical delays prevented the published form of the report from being available for public examination until several months later.

 The task force report, or "Coolican Report", received broad praise when it was made public in early 1986. Speaking to members of the press, Georges Erasmus, head of the Assembly of First Nations and former president of the Dene Nation, provided an almost unqualified endorsement of the report, suggesting that a claims policy based on its thinking might have prevented a decade of frustration and deadlock. Inuit leaders were equally enthusiastic. In subsequent public discussions, including a workshop organized by CARC in April 1986, representatives of both the mining and oil and gas industries were able to offer positive, if cautious, support.

 Virtually the only high-profile criticism of the report's recommendations came from Willard Phelps, leader of the Yukon Progressive Conservatives and former Yukon Government Leader. However, with the notable exception of Mr Phelps, an analysis of press coverage by the Department of Indian Affairs and Northern Development showed media coverage to be overwhelmingly favourable. Such enthusiasm appeared all the more graphic when viewed against the negative reaction that greeted the various recommendations on aboriginal policies proposed by the Nielsen task force as part of its comprehensive review of government programmes.¹

What was it about the Coolican Report that generated such a positive response?

 A comparison of the Coolican Report with both the preceding 1981 policy and the subsequent policy statement by Mr McKnight appears on pages 8 to 11; however, the overall direction of the report can be summarized more succinctly. The report argued that the federal government should abandon the notion that comprehensive land claims negotiations are merely the occasion to tidy up some vestigial legal problems posed by aboriginal groups in areas ripe for development; it maintained that land claims settlements should be more than vast real estate deals.

 As analysed by the task force, the 1981 comprehensive claims policy (in reality, the 1973 policy made more explicit) revealed two major objectives; an obvious legal objective aimed at eliminating the ambiguous concept of "aboriginal title" through blanket extinguishment of aboriginal interest; and an underlying economic objective aimed at minimizing the risks associated with megaprojects and other forms of development in those parts of Canada where isolation and a lack of agricultural potential had failed to attract the attention of treaty makers in the first half-century of Confederation.

 The task force recommended that these objectives give way to newer ones: the securing of a more even-handed relationship between aboriginal peoples and Canadian society as a whole (an objective premised on the assumption- contrary to the 1981 policy-that aboriginal societies are enduring rather than transitional); and the balancing of the legitimate need for governments to ensure certainty and predictability with respect to the ownership, management, and development of land and resources against the equally legitimate need for aboriginal societies to draw upon the natural wealth of traditional homelands for economic self-reliance.

 This redefinition of objectives flowed from an important shift in perception. Traditional claims policy had tended to reflect the view, inherited from the colonial period, of aboriginal peoples as impediments to economic growth. Relations between aboriginal peoples and other Canadians were regarded as essentially adversarial in nature. But the Coolican Report held that the legal problems of the Crown cannot be detached from the economic and social needs of Canada's citizens, be they aboriginal or otherwise. Stated in this way, of course, the report's recommendations were antagonistic toward the more radical views espoused by a number of aboriginal leaders and organizations. Although supportive of the possibilities for achieving a greater degree of aboriginal self-government through land claims settlements, the report makes no reference to aboriginal sovereignty, a topic that has caused enormous difficulties in constitutional discussions involving the federal and provincial first ministers and the representatives of territorial and aboriginal organizations.

In adhering to the approach that land claims settlements should be social contracts and not just quitclaim deeds, the Coolican Report recommended a number of significant changes to the substance of negotiations. Specific changes included: allowing the negotiation of alternatives to the blanket extinguishment of aboriginal interests; guaranteeing aboriginal participation in decisions made about land and resource management; including the offshore in negotiations; allowing for the possibility of resource revenue sharing; allowing for pre-implementation of certain matters and for periodic review and adjustment of settlements (with reference to arbitration if necessary); and acknowledging variation in benefits from settlement to settlement, to reflect diverging economic needs and opportunities. Recommendations aimed at ensuring a more effective and equitable process for negotiations included the appointment of an independent Commissioner for Aboriginal Land Claims Agreements, to monitor the process at all stages and to report to Parliament as needed, and the use of framework agreements to ensure that, at the beginning of negotiations, parties share adequate consensus about the major contents of a settlement and its timetable for negotiation and implementation.

 The Coolican Report, while both clear and coherent in a policy area that historically has not been blessed with a surfeit of examples, left a number of question marks behind. The issue of Métis and non-status Indian claims was not dealt with, and little was offered in the report about the principles and constraints that should guide the federal government in pursuing self-government negotiations. Perhaps the Coolican Report was weakest on the practicalities surrounding the achievement of greater aboriginal economic self-sufficiency. The report referred to this as if it were an objective attainable in all situations; yet, for many aboriginal communities, the prospects of achieving self-sufficiency may be remote. The achievement of even a relative degree of self-sufficiency is likely to depend on the definition of self-sufficiency adopted and the intergovernmental financial arrangements foreseen.

The Policy Statement

The tone of last December's policy statement in some ways belies the importance of comprehensive claims issues (negotiations involve almost half of Canada's land mass and billions of dollars) and the depth of dissatisfaction with the 1981 policy that led to the establishment of the Coolican task force. Although there is reference in the policy statement to a "new comprehensive land claims policy", the statement is more a list of reforms to an existing policy than a fundamental departure in thinking. The statement is silent on a number of recommendations in the Coolican Report, notably those relating to the negotiation and implementation of land claims settlements.

 In a statement to the press, Mr McKnight noted: "I think we have managed to capture the intent and the spirit of the Coolican Report and, at the same time, have facilitated a more prudent management of the process." An objective reading of the statement suggests there has been a great deal more emphasis on matters of process management than on capturing the spirit of the Coolican Report. The report was more than just a review of land claims policy; it was the first attempt since the abortive White Paper exercise of the late 1960s to supply a coherent view as to why Canadians should accept and pursue a route by which the societal distinctiveness of aboriginal peoples could be reinforced, the economic objectives of aboriginal societies validated, and the sharing of power between aboriginal and established political institutions accommodated. The Coolican Report did not supply ready answers to all questions, but neither did it suffer from a lack of certainty in its motivation and objectives. The recent policy statement is a far more cautious and prosaic document; depending on the vantage point, this makes the statement either more workable or less so.

 Strengths

Revisions to the claims policy address a number of major flaws in the 1981 policy. The following summarizes the strengths of some of those major revisions:

• Changes relating to extinguishment acknowledge that future settlements would only involve the relinquishment of aboriginal rights relating to land, and not rights relating to such things as language and culture. More importantly, the policy statement indicates that the federal government is prepared to negotiate alternative arrangements whereby the underlying aboriginal interest would only have to be ceded in that portion of the geographic area covered by a settlement. Through this approach, the Crown interest would be perfected in part of a settlement area, and aboriginal title would merge with the settlement provisions to provide a separate land regime in the part of the settlement area acknowledged to be aboriginally owned and controlled.
• The policy statement acknowledges that aboriginal self-government and land claims are related and that "the administration of lands and resources, and the management of settlement benefits are clearly issues of a governmental or quasi-governmental nature". Particularly important in the new policy is the willingness to negotiate guaranteed aboriginal participation in decision-making bodies that manage lands, regardless of whether the area in question is owned by the Crown or by aboriginal people. Under the old claims policy, the reluctance of federal government departments and agencies to concede anything more than advisory roles to aboriginal peoples proved to be an obstacle to settlements.
• The policy statement indicates that the federal government will be willing to negotiate a number of matters in offshore areas, specifically those related to the harvesting and management of renewable resources and the sharing of revenues derived from resource royalties. This change reflects the importance of the offshore as a source of livelihood for many aboriginal peoples and is consistent with Canadian claims to arctic sovereignty based on the use and occupation of offshore areas by aboriginal citizens.
• The willingness on the part of the federal government to negotiate resource revenue sharing with aboriginal groups will extend to both land and marine areas. Opening up the question of resource revenue sharing should inject considerably more flexibility into the negotiation process.
• It is stated that "the mandate of all federal negotiators will explicitly require that third parties be consulted, that their legitimate interests be respected, and that the public interest be safeguarded".
• Following the recommendation of the Coolican Report, the policy statement indicates that future claims will make use of "framework agreements" at the beginning of the negotiating process to provide early definition of the overall scope of negotiations.

The revised policy fails to cover adequately a number of areas. The following omissions are apt to cause difficulties:

• The policy statement does not recite explicit political and economic goals that might help shape claims negotiations and provide the basis for evaluating the success of claims settlements. The genius of the Coolican Report was its ability to look past the problems of process that have preoccupied governments in their dealings with aboriginal peoples. The Coolican Report identified the historical continuum of colonial treaties and modern-day settlements; it identified the necessity of developing a sound set of principles to motivate all aspects of aboriginal policy making; and it identified the need to translate those principles into cogent political and economic objectives. In contrast to the Coolican Report, the new policy statement is not anchored in clear principles and objectives. This will create various problems. For example, it may be difficult for diverse bureaucratic interests to agree on suitable formulae for the scale and duration of revenue flows once negotiations begin in earnest. It may also prove difficult to determine the relationship of the claims process to other processes, such as the First Ministers Conference on the constitutional protection of aboriginal rights and legislative initiatives affecting particular Indian communities.
• The new policy statement does not adopt the thinking of the Coolican Report on flexibility of results. By not doing so, aboriginal claimants will continue to assume that it is unwise to sign a final agreement until all the conceivable needs of future generations have been addressed. Equally, government departments that are invited to create new boards and agencies to accommodate guaranteed aboriginal influence in matters such as land and wildlife management will be forced to contemplate paradigms of public administration likely to last into constitutional eternity. This lack of greater long-term flexibility seriously undermines the significance of changes to the traditional extinguishment formula and, in some ways, contradicts them. The effect may be to provide somewhat greater legal uncertainty at the beginning of a settlement's implementation (due to the survival of aboriginal title in at least some areas), accompanied by long-term inflexibility in the resource management regime of the area in question. What is needed are ways to enhance short-term certainty and long-term flexibility, not the converse.
• The policy statement includes a number of ambiguities relating to resource management that may trigger later conflict between aboriginal negotiators and their federal counterparts. Perhaps the biggest difficulty will be in responding to aboriginal demands for decision-making roles with respect to nonrenewable resources. For example, an aboriginal role within a land-use planning body that decides against mineral development in areas designated for conservation purposes would be negotiable, but an aboriginal role with respect to more direct decisions about drilling programmes and pipeline construction would not.
• The policy statement appears to limit the scope of discussions on self-government negotiations to band and community-level institutions. Although it is stated that "the ultimate test for all self-government arrangements is their appropriateness in meeting the needs of communities and their capacity to thereby enhance the quality of life of the individual members of communities", it is difficult to see how this can serve as a universal test for all self-government arrangements in a federal state such as Canada.
• The policy statement's silence on the appointment of an independent Commissioner for Aboriginal Land Claims Agreements has several negative implications. The absence of a commissioner means that day-to-day decisions regarding the priority of claims recognition, funding, and negotiation will turn almost entirely on DIAND's assessment of where settlements are most desirable and attainable. It also means greater aboriginal apprehensiveness about inflexibility of results, as there will be no independent watch-dog to review settlement implementation.

¹ Government of Canada, Report of the Task Force on Program Review, (Ottawa: Queen's Printer, 1986)